Citation Nr: 1124512 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 00-18 294 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for a chronic acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and her Aunt ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from October 1978 to May 1991. This case was previously before the Board of Veterans' Appeals (Board) in September 2006 and again in October 2009 at which times it was remanded for further development. For reasons which will be set forth below, the claim is once again REMANDED to the RO by way of the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran should further action be required. REMAND The evidence of record reveals the Veteran was accorded a psychiatric examination by VA in May 2009. The examination was conducted by a panel of three clinicians. The claims file was available and reviewed by the examiners who noted the Veteran had an extensive inpatient and outpatient psychiatric history with multiple diagnoses, including mood disorder secondary to substance abuse, borderline personality disorder; PTSD due to personal trauma (sexual abuse), PTSD due to military trauma, and schizoaffective disorder, and a number of depressive variants. It was noted she was currently a psychiatric outpatient at a facility that was part of the VA Medical Center in Northport, New York. With regard to stressors, reference was made to recollections of stray mortar attacks somewhere in the vicinity of Fort Clayton, Panama. Sporadic sniper or small arms fire throughout Panama was also noted, although not specifically in or around Fort Clayton. The Veteran stated that she had memories of frequent bombings and of seeing a mass grave in Panama. She also reported distressing memories of sexual abuse in her childhood and adolescence. Following examination, she was given Axis I diagnoses of: Polysubstance abuse, in remission; pathological gambling, in recent remission; mood disorder, not otherwise specified (representing a continuation of schizoaffective disorder); and PTSD due to personal trauma. She was given an Axis II diagnosis of personality disorder, not otherwise specified, with borderline traits. The examiners commented that her diagnosed PTSD was "less likely as not related to the verified stressors noted in the C-file, based on a review of the C-file and the Veteran's inconsistent and possibly exaggerated account of her experiences in Panama (e.g., seeing a mass grave, being subjected to frequent bombings in Fort Clayton for an extended period). It is at least as likely as not due to sexual abuse that occurred during childhood and adolescence." The examiners added that "should evidence of multiple bombings at Fort Clayton and the existence of a mass grave somewhere near the base become available, then the Veteran should be afforded another examination." The claims file contains a December 2008 communication from the U.S. Army and Joint Services Records and Research Center (JSRRC) (then known as the U.S. Armed Services Center for Unit Records Research) indicating that available records, while not documenting specific attacks against Fort Clayton, noted that infrequent sniper fire harassed U.S. installations and personnel after the Invasion of Panama. Notation was also made of an oral history given by the Commanding General of the 18th Airborne Corps documenting that Fort Clayton was subject to three mortar attacks, with no specific dates given. Of record is a July 2010 communication from a Veterans service representative indicating that the Veteran's stressor was related to fear of hostile military or terroristic activity and was consistent with the places, types, and circumstances of her service because her personnel file confirmed her service in Panama between 1989 and 1990. While it was recommended that the Veteran be afforded a psychiatric examination should there be evidence of multiple bombings at Fort Clayton and the existence of a mass grave, what was accomplished in August 2010 was a review by one of the psychiatrists and one of the psychologists who evaluated the Veteran in 2009. They did not interview the Veteran with regard to their addendum in which they remarked "based on her treatment history and the absence of documented reexperiencing symptoms related to premilitary PTSD following her separation from the military, her military service did not in any way aggravate symptoms of premilitary PTSD." They added that because of substance abuse related to military service, her military service did not cause or aggravate her post military substance abuse/dependence. During the pendency of the appeal, in July 2010 38 C. F. R. $ 3.304 (f) pertaining to PTSD was amended as follows: f) (3) if a stressor or claim by a Veteran is related to the Veteran's fear of hostile military or terroristic activity and the 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 the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided 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 disorder. For purposes of this paragraph, "fear of hostile military or terroristic activity" means that the Veteran has 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 an improvised explosive device; a 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 psychophysiological state of fear, helplessness, or horror. The Veteran was not accorded a psychiatric examination subsequent to the 2009 evaluation with this amended regulation in mind and the Board believes that one is in order. Readjudication on remand should reflect consideration of this theory. Also, the Board notes that a review of the file does not refer to any recent treatment or evaluation of the Veteran for psychiatric purposes for several years. Reports of record from the VA Medical Center Northport, New York, refer to treatment and evaluation for orthopedic problems on periodic occasions in 2010, with no reference made regarding the Veteran's psychiatric status. In view of the foregoing, the Board believes that further development is in order and the case is REMANDED for the following: 1. The Veteran should be contacted and asked to provide information as to names and addresses of any mental health care providers, VA or non-VA; she has visited for psychiatric evaluation and treatment purposes since 2009. After obtaining any necessary release of information authorization from her, any such records should be obtained and associated with the claims file. In particular, the VA Medical Center in Northport, New York, should be contacted and asked to provide any records with regard to the Veteran being treated or evaluated at that facility since 2008 for psychiatric purposes. Any records obtained should be associated with the claims file. If there are no such records available, this should be so indicated. 2. The Veteran should be accorded an examination by a physician knowledgeable in psychiatry who has not evaluated her previously for the purpose of determining whether or not she has PTSD or any other chronic psychiatric disorder attributable to her experiences in the military. Prior to the examination, the claims folder must be made available to and reviewed by the examiner. A notation to the effect that this record review takes place should be included in the report by the examiner. The examiner should elicit from the Veteran a detailed history regarding the onset of ongoing symptoms. All indicated tests and studies, to include psychological testing, are to be performed. He or she should reconcile all previous psychiatric diagnoses documented in the records. A diagnosis of PTSD due to an in-service stressor should be confirmed or ruled out. If PTSD due to an in-service stressor is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. The examiner should specifically state whether it is more likely than not (that is, to a degree of probability greater than 50 percent) or less likely than not (that is, a probability of less than 50 percent) that any currently diagnosed psychiatric disorder, to include PTSD is related to the Veteran's military service. He or she should specifically address the question of whether any current psychiatric pathology is causally or etiologically related to her service, including any "fear of hostile or terroristic activity" or to some other cause or causes. The complete rationale for any opinion expressed should be provided. If the examiner cannot provide a diagnosis without resort to speculation, this should be so indicated, and the examiner should indicate whether the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's psychiatric pathology. 3. The RO should notify the Veteran that it is her responsibility to report for any examination scheduled and to cooperate fully in the development of her claim. She should be advised that the consequences of failing to report for any examination may result in a denial of her claim. 38 C.F.R. § 3.655 (2010). 4. After the above has been completed, VA must readjudicate the claim for service connection for a chronic acquired psychiatric disorder, to include PTSD. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative should be provided with a Supplemental Statement of the Case. They should then be given a reasonable time frame in which to respond. Then, the case should be returned to the Board for further appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion, either legal or factual, as to any final outcome warranted. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ V. L. Jordan 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) (2010).