Citation Nr: 1126834 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 09-42 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), panic disorder with agoraphobia and dysthymic disorder. REPRESENTATION Appellant represented by: Veterans Law Clinic WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1976. This matter comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran was provided a Videoconference hearing before the Board in April 2011. A transcript of the testimony offered at this hearing has been associated with the record. At this hearing, the Veteran submitted evidence that has not yet been considered by the RO. In this regard, the Board may consider this evidence in the first instance because the Veteran has waived initial RO consideration thereof. See 38 C.F.R. § 20.1304(c) (2010). 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 Initially, the Board points out that the issue certified for appeal is a claim of entitlement to service connection of PTSD, and that the Veteran specifically withdrew a claim of entitlement to service connection for a panic disorder and agoraphobia in November 2008. However, the U.S. Court of Appeals for Veterans Claims (Court) recently held that a claim for service connection for PTSD may encompass claims for service connection of 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 the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The evidence of record shows a diagnosis of PTSD, but also diagnoses of panic disorder with agoraphobia and dysthymic disorder, and that the Veteran seeks compensation for the symptomatology associated therewith. Accordingly, the claim has been re-characterized as a claim for a psychiatric disorder, to include PTSD, panic disorder with agoraphobia, and dysthymic disorder. As discussed below, the Veteran will be afforded a VA examination with respect to these psychiatric disorders. The Veteran received an entrance examination in April 1973. Upon clinical evaluation his psychiatric state was normal. See April 1973 report of medical examination. At this time, he denied a history of depression or excessive worry, but did not acknowledge or deny a history of "[n]ervous trouble of any sort." See April 1973 report of medical history. In March 1975 the Veteran presented to his battalion aid station with a complaint of the shakes and bad nerves. Apparently, the Veteran's symptoms were related to a suspected hepatitis infection. The Veteran received an separation examination in April 1976. Upon clinical evaluation his psychiatric state was normal. See April 1976 report of medical examination Following service, the earliest evidence pertaining to the Veteran's psychiatric state appears in a May 1980 intake evaluation from the Saginaw County Community Mental Health Services Board. At this time, the Veteran presented with a history of apparent anxiety attacks and depression, primarily due to his present situation, i.e. no money, no job, debts and problems with his girlfriend. He also related that he tended to get nervous when he left home, but could give no rationale for this phenomena. He related that he had enjoyed his period of active military service. Respiratory psychophysioloigic malfunction and adjustment reaction with mixed emotional features were assessed at this time. In October 1982 the Veteran once again presented at the Saginaw County Community Mental Health Services Board with similar complaints. He was assessed as having panic disorder and agoraphobia with panic attacks. Subsequent medical records document similar impressions. As noted, the Veteran seeks compensation for his psychiatric disorders as due to service. He particularly attributes them to his parachuting experiences, to which he relates a fear of injury and death. The Veteran was awarded the Parachute Badge. See DD Form 214. In January 2007 the Veteran was afforded a VA psychiatric examination. The examiner remarked that the records were very compelling to the effect that shortly after the Veteran's discharge, that he developed panic attacks with agoraphobia and rapidly became so debilitated that he was unable to tolerate gainful employment. On the other hand, the examiner remarked that where causes or manifestations of PTSD were concerned, the records were far less, indeed woefully less informative and supportive. The examiner noted that the Veteran also had chronic anxiety and dysthymia. During the examination, the Veteran reported a history of some 88 parachute jumps, and that he developed severe symptoms of anxiety on one occasion while on active duty, but that when he sought treatment he was not taken seriously. The Veteran related that he met only once with a counselor who drove him around the base (perhaps to assess is agoraphobic symptoms) and then took him back to the barracks. He described suffering from agoraphobia since very shortly after his discharge, depression for about the past 20 years , as well as phenomena associated with PTSD intermittently for 20 years. The examiner felt that PTSD was an appropriate diagnosis, but did not feel that it was related to the Veteran's military service. The examiner reasoned that the Veteran did not describe, while in service (and in spite of his having to repeatedly jump from airplanes) symptoms of PTSD. The examiner noted further that the Veteran also did not describe symptoms that would have been consistent with PTSD after being discharged from service, despite the fact that he routinely consulted with mental health professionals. Yet, the examiner felt the diagnosis was appropriate based upon his self descriptions. The examiner rather felt that the Veteran had very consistently described symptoms of panic attacks with agoraphobia and that it was not until recently that the Veteran was assessed as having PTSD by his individual counselor, although not his psychiatrist. In this regard, the examiner concluded that the effects of the Veteran's PTSD were of trivial significance, while panic attacks with agoraphobia, taken in conjunction with a dependent personality disorder, were primarily responsible for the Veteran's impediment. The examiner remarked that the Veteran's panic disorder with agoraphobia and dependent personality disorder had their roots in the Veteran's childhood and adolescence. Nevertheless, the examiner would not dispute the possibility that the Veteran's later adult panic disorder with agoraphobia might well be attributable, in part, to his experiences with jumping out of aircraft while a paratrooper. To phrase it more aptly, the examiner stated that "it would be [his] impression that the problems extant in the [Veteran's] functioning were likely exacerbated by his military experiences." The examiner explained in closing that he did "not find it possible to determine to what extent the [Veteran's] childhood and adolescent experiences (vs. the experiences he endured while in the Army or after having been discharged from the service) operated to determine the disabling psychological problems" that developed at some point after the Veteran was discharged. Logically, the examiner stated, all were of some relevance, where cause and aggravation were concerned. VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. Moreover, When a medical examination report "does not contain sufficient detail," the adjudicator is required to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2010). Along these lines, the Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Although the examiner noted that the Veteran had existing psychological problems that existed prior to service, the examiner did not indicate that a specific Axis 1 psychiatric disability existed prior to service. Given the high evidentiary threshold for establishing that a disability not noted at enlistment actually pre-existed enlistment, the Board finds that clarification is necessary. Lastly, the Board notes that the Veteran is apparently in receipt of disability benefits from the Social Security Administration (SSA) based upon his various psychiatric problems. There is no indication of any effort to obtain the records associated with his claim for SSA benefits. Appropriate action to obtain all records associated with any SSA claim must be accomplished before adjudication can be made on the merits. See generally Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Upon remand of this matter, the RO should attempt to obtain the Veteran's SSA records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain from the SSA the records pertinent to the Veteran's claim for SSA disability benefits. If such records are unavailable a notation to that effect should be made in the claims file. 2. After the development directed in paragraph 1 has been completed to the extent possible, arrange for the Veteran to be afforded an examination by an appropriate medical professional to determine the nature and etiology of his claimed psychiatric disabilities. The examiner is asked to identify and provide a diagnosis for any such disability(ies). The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether any diagnosed psychiatric disability(ies), with a particular emphasis on panic disorder with agoraphobia, pre-existed service, and if so whether any such disorder worsened in service or was otherwise aggravated by service. If the examiner determines that any such disability(ies) did not exist prior to service, the examiner is asked to address whether it is at least as likely as not (50 percent or better probability) that any such disability first had its onset in service or is otherwise attributable to service. The examiner should also render a specific opinion as to whether the Veteran currently has PTSD in accordance with the DSM- IV. If so, an opinion should be provided as to whether it is at least as likely as not that the Veteran's current PTSD was caused or aggravated by his active duty service, to include his reported in-service stressor. If so, the specific stressor or stressors that led to PTSD must be identified. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 3. Thereafter, readjudicate the issue. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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. 2010). _________________________________________________ MICHAEL LANE 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).