Citation Nr: 1105167 Decision Date: 02/08/11 Archive Date: 02/18/11 DOCKET NO. 09-40 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for pituitary adenoma, postoperative. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2007 and March 2009 rating decisions by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for pituitary adenoma, post-operative, and PTSD. Timely appeals were noted with respect to those decisions. The Board has recharacterized the Veteran's claim of entitlement to service connection for PTSD to more broadly encompass entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). An informal conference on these matters was held before a Decision Review Officer on November 10, 2009, and a hearing was held before the undersigned Veterans Law Judge sitting at the RO on June 7, 2010. A copy of the hearing transcript has been associated with the file. 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 has indicated that he was treated by a private physician, Dr. Geyer, for pituitary adenoma in the summer of 2007. In a VA clinical note dated in September 2008, however, the Veteran stated that he had an appointment with Dr. Geyer the following month. However, only two records from Dr. Geyer, dated June 2007, are included with the claims folder; no additional records have been requested. Upon remand, the RO should contact Dr. Geyer and request that all records of his treatment of the Veteran for pituitary adenoma be provided for inclusion with the claims folder. 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The record reflects that the Veteran is currently receiving Social Security Administration (SSA) disability benefits; however, the basis for the grant of SSA benefits is unclear. VA will make attempts to obtain records in the custody of a Federal department until it is determined that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). As such, the RO should contact the SSA and request that all of the records associated with the Veteran's claim for disability benefits be provided for inclusion with the claims folder. The Veteran has been diagnosed with PTSD, which he attributes to fear of hostile military activity, among other stressors. The Veteran's primary stressors of witnessing helicopters coming into the base with dead soldiers and witnessing a Vietnamese civilian being killed by a truck are too vague to be meaningfully researched. If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010), to be codified at 38 C.F.R. § 3.304 (f)(3). The Veteran's service personnel records and separation document reflect that he served in the Republic of Vietnam from March 1970 to December 1970. The Board finds that, under the changes to 38 C.F.R. § 3.304(f)(3), the Veteran thus had "service in a location that would potentially involve 'hostile military or terrorist activity'." In light of this, the Board finds it necessary to secure an examination to ascertain whether the Veteran in fact has PTSD that is a result of his fear of hostile military activity and that the claimed stressor is adequate to support a diagnosis of PTSD. Further, under Clemons, supra, the United States Court of Appeals for Veterans Claims (Court) held that, although an appellant's claim identified PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes him. In this case, the Veteran has diagnoses of both PTSD and depression. In order to properly assess the Veteran's claim for an acquired psychiatric disorder, to include PTSD and depression, on remand the RO must schedule him for a VA psychiatric examination in order to determine the current diagnosis or diagnoses of his claimed acquired psychiatric disorder(s). In addition to conducting a psychiatric examination, the designated examiner must provide a medical nexus opinion with respect to any identified acquired psychiatric disorder. The opinion must address whether the Veteran has an acquired psychiatric disorder that is attributable to his active military service. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, contact Dr. Geyer and request that all records of the Veteran's treatment for pituitary adenoma be provided for inclusion with the claims folder. If such records are unavailable, a negative response should be obtained and the Veteran should be so notified. 2. Request from SSA all records associated with the Veteran's disability claim. Request copies of any disability determinations and all medical records considered in making those determinations. If such records are unavailable, a negative response must be obtained and the Veteran must be notified. 3. Schedule the Veteran for an examination by a VA psychiatrist to determine whether the diagnostic criteria for PTSD are met; and to identify any current psychiatric disability other than PTSD. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. The examiner should determine whether the Veteran currently suffers from PTSD related to his fear of hostile military or terrorist activity while on active duty and whether it is adequate to support a diagnosis of PTSD. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. For any current psychiatric disability other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it had its onset in service or is otherwise the result of disease or injury during service. Any opinion in this regard must be reconciled with the in-service findings of emotional instability, to include an October 1970 finding that the Veteran had emotional instability and "severe stress" relating to his military duty and marital problems, and the Veteran's notation on his November 1970 Report of Medical History that he had attempted suicide. The examination report should include the complete rationale for all opinions expressed. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. _________________________________________________ THOMAS J. DANNAHER 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).