Citation Nr: 1036495 Decision Date: 09/27/10 Archive Date: 09/30/10 DOCKET NO. 05-16 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2006, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. This appeal was previously before the Board in January 2007 and April 2009. The Board remanded the claim so that treatment records could be requested, the Veteran's stressors could be researched, and the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran filed a claim for service connection for PTSD in May 2004. His stressor statement provided that during service in country Vietnam from October 1967 to October 1968 his friend was killed by friendly fire, he was shot at while on perimeter guard duty, and he witnessed an "ammo dump" explosion as the result of an enemy attack. In September 2009, the RO provided a memorandum of stressor verification which noted that the soldier the Veteran identified as a friend who died by friendly fire, had in fact served with the Veteran and died in November 1966 (although the cause of his death could not be established). The stressor of the ammo dump being blown up was also verified, as there were two occasions of ammo dumps being blown up during the time the Veteran served in Vietnam, and in the area where he served. Although the Veteran's stressors have been verified, there are discrepancies in the record regarding the Veteran's diagnosis, and a nexus opinion is required. The Veteran was previously denied service connection for depression. Service treatment records show that in November 1966 the Veteran reported to a physician that he had "had a nervous condition since he was a child." He stated he was afraid of the new officers and that he was afraid of doing something wrong and getting in trouble. He requested that he be able to see a doctor about his nervous condition. In an additional note from November 1966 a physician noted that the Veteran had led a sheltered life and needed reassurance and recognition for a job well done more so than that of the average individual. The physician noted that the Veteran was functioning well, and that there was no further need for him to be seen. The Veteran's March 1968 separation physical examination report and associated report of medical history found him to be psychiatrically normal; he denied depression, excessive worry, trouble sleeping, frequent or terrifying nightmares, or nervous trouble of any sort. In June 2004, during an initial evaluation for the mental health clinic at the Phoenix VAMC it was noted that the Veteran had a history of depression. He noted he first saw a psychiatrist or therapist at age 7, though he did not know why, and that at age 8 or 9 he saw a therapist for "emotional problems." He stated that after the death of his friend in service he also sought psychiatric treatment. He was diagnosed with depression by history. At the time, he had a positive screen for PTSD. In July 2004, a Phoenix VAMC physician diagnosed the Veteran with MDD with psychotic features, a history of psychosis (not otherwise specified), and PTSD. During the evaluation the Veteran spoke of his friend dying in service and the ammunition explosion; the physician noted he continued to struggle with disturbing memories of his tour of duty. An undated Vet Center Intake evaluation form noted that the Veteran had symptoms of depression and anger, and that he had experienced "anger problems" since service. A list of the Veteran's VA medical history noted diagnoses of PTSD, dysthymia, anxiety disorder, and schizoid personality disorder. In April 2008, the Veteran was afforded a VA psychiatric examination; the examiner indicated that she reviewed his medical records history, but not that she reviewed his claims file. After a review of the records, she noted his childhood history of "emotional problems" and his reported (to treating physicians) problems with employment. After a thorough review of his medical records and an interview, the examiner diagnosed dysthymia with some symptoms of PTSD, and schizotypal and schizoidal features but not enough for the diagnosis of a personality disorder. She indicated that although the Veteran had been diagnosed with PTSD by the Phoenix VAMC, she did not believe he met the required criteria for a diagnosis of PTSD, and she did not feel that receiving notice of his friend's death was an adequate stressor. She continued that he had recent symptoms of depression after losing his job. A nexus opinion for the diagnosed dysthymia was not requested of or provided by the examiner. A February 2009 Wichita mental health note showed a diagnosis of depression (with insomnia and hallucinations). However, a March 2009 Wichita VA treatment record noted the Veteran was prescribed citalopram for his PTSD. In September 2009, the Veteran was again afforded a VA PTSD examination, subsequent to the verification of his claimed PTSD stressors. After a review of the claims file and interview, the examiner diagnosed dysthymic disorder, which she felt was low- grade and long standing. She noted that his recent job loss had intensified the depression somewhat, but that careful interviewing did not reveal avoidance behaviors associated with a PTSD diagnosis. Again, a nexus opinion was not requested of or provided by the examiner with regards to the diagnosis of dysthymic disorder. Although the Veteran applied for service connection for PTSD, the Board has recharacterized the issue as shown on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As such, the Veteran can be service connected for his dysthymic disorder (or another acquired psychiatric disorder) if the disorder was caused by or aggravated by service. On remand, the Veteran should be afforded an additional VA psychiatric evaluation to assess any acquired psychiatric condition and its possible nexus to service. This evaluation should include an opinion from the examiner as to whether the Veteran had any diagnosed acquired psychiatric disorder prior to service, and if so, whether that disorder was aggravated by service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA mental disorders examination/initial PTSD examination the etiology of any current acquired psychiatric disorder. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history is to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the psychiatrist or psychologist for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for any acquired psychiatric disorder found. An opinion is requested as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffered from the diagnosed disorder prior to service. If so, the examiner should opine as to whether it is at least as likely as not that the disorder was aggravated (worsening beyond usual progress) by service. If not, the examiner should opine as to whether it is at least as likely as not that any diagnosed psychiatric disorder began during service or is otherwise related to service. The examiner should provide a rationale for any opinions provided. 2. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 3. Thereafter, the AMC/RO is to readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).