Citation Nr: 1132467 Decision Date: 09/02/11 Archive Date: 09/12/11 DOCKET NO. 10-10 566 ) 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 disorder, to include an adjustment disorder and posttraumatic stress disorder (PTSD), and to include as secondary to the service-connected traumatic brain injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active service from October 2005 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Wichita, Kansas. The Board notes that the issue on appeal had previously been developed to include only PTSD. The United States Court of Appeals for Veterans Claims (Court) has recently held that the scope of a mental health disorder claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim on appeal has been recharacterized to include any acquired psychiatric disorder, to include the Veteran's current diagnosis of an adjustment disorder. In October 2010, the Veteran testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the claim can be properly adjudicated. First, at the Veteran's October 2010 Board hearing, the Veteran's representative suggested that the Veteran's service-connected traumatic brain injury may have caused his PTSD. Thus, this theory of secondary service connection has been added to the Veteran's appeal, and the characterization of the issue was adjusted accordingly. In this regard, the Veteran has not been provided proper Veterans Claims Assistance Act of 2000 (VCAA) notice for his service connection claim regarding establishing secondary service connection. 38 U.S.C.A. § 5100 et seq (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.310, 3.326(a) (2010). The Veteran must be provided with this VCAA notice before this claim can be decided on the merits. Second, the most recent treatment records from the VA Medical Center are dated from January 2010. At his Board hearing in October 2010, the Veteran testified that he was currently being treated by VA for his acquired psychiatric disorder. All pertinent treatment records since January 2010 must be obtained and added to the claims file. Finally, the Board notes that service connection may be granted if the evidence demonstrates that a current disorder resulted from an injury or disease that was incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). Stated somewhat differently, in order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for PTSD in particular requires medical evidence diagnosing the disorder in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that a Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a Veteran's service, his or her lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (2010). Here, in regards to a current diagnosis of an acquired psychiatric disorder, there is probative evidence for and against the issue of whether the Veteran has requisite DSM-IV diagnosis of PTSD. In August 2009, following a psychiatric examination at the VA Medical Center, a clinical social worker determined that the Veteran did have a PTSD diagnosis according to the DSM-IV criteria. This PTSD diagnosis was reviewed and accepted by a VA clinical psychologist, a VA psychiatrist, and a VA psychiatric clinical specialist. In contrast, the March 2009 VA examiner determined that the Veteran did not meet all of the criteria for the DSM-IV PTSD diagnosis. Therefore, giving the Veteran the benefit of the doubt, the Board finds that VA must resolve this reasonable doubt in his favor and conclude he has the necessary DSM-IV PTSD diagnosis. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran also has a current diagnosis of an adjustment disorder from the March 2009 VA examination and from VA treatment records. In regards to an in-service incurrence, the Veteran's service treatment records are devoid of any treatment or complaints related to an acquired psychiatric disorder. However, the evidence of record indicates that the Veteran was awarded the Combat Action Badge for his active military service. As such, the record clearly indicates that the Veteran was exposed to combat, and accordingly, his assertions regarding events during combat are to be presumed if consistent with the time, place, and circumstances of such service, thereby relaxing the adjudicative evidentiary requirements for determining what happened during his active military service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see Caluza v. Brown, 7 Vet. App. 498 (1995); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Accordingly, the Board finds that the Veteran's reported acquired psychiatric disorder stressor has been verified by his combat military service. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifie; and, (3) an indication that the disorder or persistent or recurrent symptoms of a disorder may be associated with the Veteran's service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). Although the Veteran was provided a VA psychiatric examination in March 2009, the VA examiner did not provide a medical nexus opinion addressing whether the Veteran's current acquired psychiatric disorder is related to his active military service, to include as due to his service-connected TBI. Therefore, the Board finds that a new VA medical opinion is necessary to determine the etiology of the Veteran's acquired psychiatric disorder, to include his PTSD and adjustment disorder. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall send the Veteran a duty-to-assist notice pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes, but is not limited to, an explanation as to what information or evidence is needed to substantiate his claim of entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and PTSD, and to include as secondary to the service-connected TBI. Specifically, the notice letter should include the requirements for establishing secondary service connection. 2. The RO/AMC shall obtain all pertinent VA outpatient treatment records since January 2010 that have not been secured for inclusion in the record. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 3. After obtaining the above records, the RO/AMC shall ask the original March 2009 VA psychiatric examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an appropriate VA psychiatric examination to ascertain the etiology of his currently diagnosed PTSD and adjustment disorder. Properly notify the Veteran of the examination by sending notice of the details of the examination to the Veteran at his correct address. Send the notice with sufficient time in advance to allow the Veteran to attend the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims file, including the Veteran's service treatment records, has been reviewed. For purposes of this examination, the VA examiner should presume that the Veteran has current diagnoses of PTSD (according to the DSM-IV criteria) and adjustment disorder. The examiner must express an opinion addressing: a) Is it as least as likely as not that the Veteran's currently diagnosed PTSD is etiologically related to his active military service, to include his verified in-service combat stressors? b) Is it as least as likely as not that the Veteran's currently diagnosed adjustment disorder is etiologically related to his active military service, to include his verified in-service combat stressors? c) Is it as least as likely as not that the Veteran's currently diagnosed PTSD is due to his TBI? d) Is it as least as likely as not that the Veteran's currently diagnosed PTSD is permanently aggravated by his service-connected TBI? e) Is it as least as likely as not that the Veteran's currently diagnosed adjustment disorder is due to his TBI? f) Is it as least as likely as not that the Veteran's currently diagnosed adjustment disorder is permanently aggravated by his service-connected TBI? In doing so, the examiner must acknowledge the Veteran's competent report as to the onset and continuity of symptomatology. Any opinions expressed must be accompanied by a complete rationale. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorders, or whether the actual causes are due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 4. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case, and afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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 2002). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).