Citation Nr: 1133167 Decision Date: 09/08/11 Archive Date: 09/15/11 DOCKET NO. 09-15 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. R. Bodger INTRODUCTION The Veteran served on active duty from September 1983 to July 1987. This matter comes before the Board of Veterans' Affairs (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran's PTSD claim was independently adjudicated. Recent case law mandates that a claim for a mental health disability 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Veteran has consistently reported that that he has suffers from depression, anxiety, and sleep problems since his service. Accordingly, the Board has consolidated these matters, and recharacterizes the issue as service connection for an acquired psychiatric disability, to include PTSD, depression, and anxiety. In March 2011, the Veteran testified before the undersigned Veterans Law Judge during a travel board hearing. A transcript of the proceeding has been associated with the 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 Reasons for remand: To obtain additional treatment records and afford the Veteran a VA examination. Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) of VA regulations, that is, a diagnosis which meets the criteria in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV); (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence between current symptomatology and the claimed in-service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a) (2010). Here, the Veteran asserts that he has PTSD as a result of his peacetime service in Germany. The Veteran has essentially claimed that he served on recovery in Germany between 1983 and 1986 in the 3rd Armored Division. During his Board hearing, the Veteran asserted that he was assigned to Unit E122, 3rd Armor Division, as well as two other unites which were Artillery and Recovery. He claimed that during his tour in Germany, he witnessed numerous instances where his squad was called to recover wrecked or abandoned vehicles and he witnessed fellow soldiers who had been killed or who were seriously injured due to these vehicular accidents. Despite the RO's findings in the July 2008 memo, the Veteran supplied additional information regarding his unit while stationed in Germany. ON remand, the RO should again attempt to obtain additional information regarding his claimed stressors. During the course of the appeal, the criteria for service connection for PTSD, and, specifically verification of PTSD stressors, have changed. This amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others and the Veteran's response to the event or circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror. See VBA Training Letter 10-05 (July 16, 2010). The amendment acknowledges the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. The amended criteria is for application for claims that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010, as in this case. See 75 Fed. Reg. 39843 (July 13, 2010). As the Veteran's claim has yet to be decided by the Board and in light of his claimed stressors involving witnessing death, the new criteria regarding the verification of PTSD stressors are applicable in this case. In addition, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In addition, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c) (2010). In this regard, the Veteran testified, during his March 2011 travel board hearing, that he was incarcerated in the 1990s and was treated for psychiatric conditions, to include depression, anxiety, and schizophrenia. A review of the record indicates that he was incarcerated in prison in Dallas, Texas from 1999 until his release on August 24, 2000. These treatment records are not associated with the claims file. The Veteran also testified that he received mental health treatment from the Dallas VA Medical Center from 2000 to the present for his acquired psychiatric disabilities, including PTSD, depression, and anxiety. It is noted that VA treatment records show diagnoses for major depressive disorder and anxiety and no diagnosis for PTSD. However, updated treatment records were obtained after his March 2011 Board hearing which indicate the possibility of a PTSD diagnosis. Specifically, a March 2011 treatment note provides that the Veteran suffered from anxiety, depression, and PTSD issues. An October 2010 treatment note indicates that the Veteran was seeking mental health treatment for his depression with PTSD. On remand, the RO should again attempt to obtain the Veteran's unit records. The RO should also attempt to locate and obtain the mental health treatment records from 1999 to 2000 during the time the Veteran was incarcerating in Dallas, Texas. Updated treatment records from March 2011 to the present should also be obtained as well from the Dallas VA Medical Center. Even if the updated VA medical records or private treatment records do no show a diagnosis of PTSD, a VA examination is necessary to satisfy VA's duty to assist. Specifically, the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. An examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board acknowledges that service treatment records are negative for complaints of or treatment for an acquired psychiatric disorder. Significantly, however, a veteran, as a layperson, is competent to report symptoms that he/she experiences or has experienced. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007). In this regard, the Board further acknowledges that, at the March 2011 hearing, the Veteran testified that he began to experience depression, anxiety, and problems sleeping during service which continued after service discharge to the present. Indeed, and as provided above, post-service medical records reflect a current diagnosis of a major depressive disorder and anxiety disorder. However, the Veteran has not been provided a VA examination in connection with this claim. In light of this evidence, the Board concludes that an examination is warranted pursuant to VA's duty to assist. See McLendon, 20 Vet. App. 79. It is noted that the VA medical records also show that the Veteran has suffered from alcohol abuse for many years. While alcohol abuse may not be itself be service connected, it may be considered if it is medically determined that his psychiatric disabilities precipitate his substance abuse. See Allen v. Principi, 237 F.3d 1368, 1370 (Fed. Cir. 2001). On remand, the VA examiner should opine as to whether his psychiatric disabilities precipitated his alcohol abuse. Accordingly, the case is REMANDED for the following action: 1. Review the file and prepare a summary of all the Veteran's claimed and verifiable stressors. This summary, and all associated documents, should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC). Request that the JSRRC provide information which might corroborate the Veteran's alleged stressors during his assignment in Germany in Unit E122, 3rd Armor Division. The RO must associate any response and/or additional records with the claims file. 2. Provide the Veteran with appropriate release forms, if needed, and thereafter attempt to obtain the mental health treatment records from 1999 to August 24, 2000 while the Veteran was incarcerated in Dallas, Texas. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. 3. Obtain updated treatment records from the Dallas VA Medical Center from March 2011 to the present for any acquired psychiatric disabilities. Associate all such available records with the claims folder. 4. Schedule the Veteran for a VA examination to determine the etiology of any currently diagnosed psychiatric disorder(s), to include PTSD, a depressive disorder, and/or an anxiety disorder. The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. All appropriate tests and studies should be conducted. Specifically, the examiner is asked to determine whether the Veteran has a diagnosis of PTSD in accordance with VA regulations. If PTSD is diagnosed, the examiner should specify the stressor or stressors used as the basis for the diagnosis and whether the stressors were sufficient to produce a diagnosis of PTSD. The examiner should opine whether it is at least as likely as not (at least a 50 percent or more probability) that the Veteran's claimed PTSD is related to his active service. Even if the Veteran does not meet the criteria for a PTSD diagnosis, the examiner is asked to determine the etiology of any other acquired psychiatric disorder(s). The examiner should express an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's psychiatric disability is related to service, including the noted in-service stressors. The rationale for all opinions expressed should be provided in a legible report. It is requested that the examiner consider and reconcile any additional opinions and diagnoses of record or any contradictory evidence regarding the above. If the examiner is unable to render an opinion without resort to mere speculation, it should be indicated and explained why an opinion cannot be reached. 5. Then, the RO should then readjudicate the claim. If such action does not resolve the claim, a supplemental statement of the case (SSOC) should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order The Veteran 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).