Citation Nr: 1109782 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 04-25 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from February to July 1979. This case comes before the Board of Veterans' Appeals (the Board) on appeal from February 2004, November 2005, and August 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey (the RO). The Veteran presented testimony before the undersigned Veterans Law Judge at the RO in September 2007. A transcript of this hearing has been associated with the Veteran's VA claims folder. With respect to the Veteran's claim for service connection for PTSD, the Board concludes that in light of the decision of the Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim 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), the issue is more appropriately characterized as captioned above. 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 Additional development is needed prior to further disposition of the claims for several reasons, including a lack of substantial compliance with the Board's January 2009 remand instructions; hence, a further remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). In January 2009, the Board remanded the claim of entitlement to service connection for PTSD in part for the purpose of scheduling the Veteran for an examination to determine whether he met the criteria for a PTSD diagnosis based upon a verified in-service stressor. The September 2009 examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD, and the RO again denied the claim. As noted in the introduction section above, however, since the January 2009 remand, the Court has held that the scope of a mental health disability claim 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 (2009). In this regard, the Board notes that the Veteran has been diagnosed with schizoaffective disorder, and based upon a review of the claims file, that many of the symptoms of schizoaffective disorder overlap with those of PTSD. As the September 2009 examiner did not comment as to whether the Veteran's schizoaffective disorder had its clinical onset during his period of active service, or whether it is otherwise related to service, and such is unclear to the Board, the Board concludes that a remand of this issue for an additional VA psychiatric examination is necessary. The January 2009 remand also instructed the AMC to send the Veteran a letter advising him of the special evidence available to corroborate stressors in a personal assault case. In particular, the Board noted that the Veteran should be advised that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, as required by 38 C.F.R. § 3.304(f)(3). The March 2009 letter the AMC sent the Veteran included information pertaining to substantiating a PTSD claim but did not include information pertaining specifically to claims based upon personal assault. VA will not deny a claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him/her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. The case must accordingly be remanded so that a proper VCAA notice addressing the requirements of 38 C.F.R. § 3.304(f)(3) can be sent to the Veteran. Next, the January 2009 remand noted that because the Veteran's PTSD claim was based in part on his report of an in-service assault, behavior changes in service may constitute corroborating evidence of the claimed stressor. As evidence of behavior changes, such as deterioration in work performance or transfer requests, might be chronicled in the Veteran's service personnel records, the Board instructed the AMC to obtain and associate the Veteran's service personnel records with his VA claims folder. On remand, however, the AMC requested only those "pages from the personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decoration and official travel outside of the U.S." The National Personnel Records Center submitted the requested records to the AMC in March 2009. These records did not include records that could serve to substantiate a claim of personal assault. As the Veteran does not contend that he has PTSD based upon combat in service, the requested records are an insufficient basis upon which to decide his claim. On remand, the Veteran's entire service personnel records should be requested and associated with the claims file. Next, with respect to the claim of entitlement to service connection for a right knee disability, in January 2009, the Board remanded the claim for the purpose of obtaining an opinion addressing whether the Veteran's right knee disability was related to his active service. The Veteran underwent VA examination of his right knee in September 2009. The examiner, however, failed to offer an opinion regarding the etiology of the right knee disability. The examiner appears to have presumed that the right knee was service-connected. As the Veteran is not currently service-connected for the right knee, a remand for an opinion is necessary. The Veteran's claims of entitlement to service connection for back and left knee disabilities must also be remanded. The Veteran underwent VA examination of his back and left knee in September 2009. The examiner, however, did not provide opinions as to whether the left knee and back disabilities had been caused or aggravated by the Veteran's psychiatric disorders, as requested by the Board in the January 2009 remand. As the Veteran claims entitlement to service connection for these disorders in part on this basis, a remand for opinions in this regard is necessary before the Board may address the merits of the Veteran's claims. A remand is also necessary with respect to the Veteran's claim of entitlement to service connection for asthma. The Veteran underwent VA respiratory examination in September 2009, as a result of which the examiner stated that he was unable to determine whether the Veteran's asthma was related to his active service without resorting to speculation. A mere recitation by the VA examiner that he or she cannot provide a medical opinion without resort to speculation by itself is not dispositive, where there is no clearly obvious rationale offered for why this was the case. See Jones v. Shinseki, 23 Vet. App. 382, 290 (2010) (before relying on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the review of the evidence). As the examiner did not provide a basis for the conclusion that an opinion could not be reached without resort to speculation, the Board must remand the claim for an additional medical opinion. Lastly, the most recent VA records in the claims file are dated in March 2009. As the Veteran indicated at his September 2009 VA examinations that he has continued to receive VA treatment, the Board finds that there are additional VA treatment records pertinent to these claims that are outstanding. These records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. In accordance with the provisions of M21-1MR, IV.ii.1.D.17.g and III.iv.4.H.30.b, the RO/AMC should send the Veteran an appropriate stressor development letter. The Veteran should also be notified that in-service personal assault may be corroborated by evidence from sources other than the service records, as defined in 38 C.F.R. § 3.304(f)(3) (2010). All specific examples of alternative sources of evidence listed in section 3.304(f)(3) must be included in the notification to the Veteran. 2. Obtain and associate with the claims file all records from the VA Medical Center in East Orange, New Jersey, dated from April 2009 to the present, and all records from the VA outpatient clinic in Newark, New Jersey, dated from April 2009 to the present. 3. Obtain the Veteran's complete service personnel records and associate them with his VA claims folder. 4. After the above development has been completed, schedule the Veteran for a VA examination to determine the current nature and etiology of any psychiatric disability. The claims file should be reviewed by the examiner and that review should be indicated in the examination report. The examiner should specifically attempt to reconcile the opinion with all other pertinent evidence of record, including the Veteran's competent report of having experienced anxiety associated with the asthma attack he experienced in gas chamber training he is presumed to have undergone in service, the post-service medical records reflecting complaints and clinical findings of multiple psychiatric symptoms; including depression, memory loss, and difficulty sleeping, the January 2008 report of psychiatric testing and associated diagnosis of PTSD, and the statements of the Veteran, his family members, and representative, regarding a history of psychiatric problems since the reported in-service stressor. The VA examiner's opinion should specifically include the following: (a) Diagnose all psychiatric disabilities demonstrated during the pendency of the appeal, to include, but not limited to anxiety, depression, PTSD, and schizoaffective disorder. (b) Provide a full multi-axial diagnosis and specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM- IV). (c) If a diagnosis of PTSD is warranted, specify the specific in-service stressor or stressors upon which that diagnosis is based. (d) If a diagnosis of PTSD is not warranted, state whether it is as likely as not that any other diagnosed disorder had its clinical onset during the Veteran's period of active service or is otherwise related to his active service. In answering the foregoing questions, the examiner must acknowledge and discuss the statements of the Veteran, his family members, and representative, regarding a history of psychiatric problems since the reported in-service stressor, and must explain the basis for any opinion provided, and include supporting references to the Veteran's medical record and the Veteran's allegations. 5. Forward the Veteran's claims file to the examiner who conducted the September 2009 orthopedic examination, or to another examiner if the previous examiner is unavailable, for the purpose of rendering an opinion as to whether the Veteran's right knee disability is related to his active service. No further examination of the Veteran is necessary, unless the examiner determines otherwise. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's right knee disability was either caused or aggravated by the Veteran's period of service or his alleged PTSD or other psychiatric disorder, in the sense that he has allegedly injured his knee and back as a result of awaking kicking and thrashing and having to jump out of bed as a result of his PTSD. A report of the examination should be prepared and associated with the Veteran's VA claims folder. The examiner must explain any opinion provided, and include supporting references to the Veteran's medical record. 6. Forward the Veteran's claims file to the examiner who conducted the September 2009 orthopedic examination, or to another examiner if the previous examiner is unavailable, for the purpose of rendering opinions as to whether the Veteran's left knee and back disabilities are related to his acquired psychiatric disorders. No further examination of the Veteran is necessary, unless the examiner determines otherwise. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's alleged PTSD or other psychiatric disorder, in the sense that he has allegedly injured his knee and back as a result of awaking kicking and thrashing and having to jump out of bed as a result of his PTSD. A report of the examination should be prepared and associated with the Veteran's VA claims folder. The examiner must explain any opinion provided, and to include supporting references to the Veteran's medical record. 7. Forward the Veteran's claims file to the examiner who conducted the September 2009 respiratory examination, or to another examiner if the previous examiner is unavailable, for the purpose of rendering an opinion regarding the nature and etiology of the Veteran's asthma, to include whether any asthma that pre-existed his entrance into service was aggravated as a result of his active service. No further examination of the Veteran is necessary, unless the examiner determines otherwise. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should specifically provide an opinion as to whether the Veteran's asthma was either caused or aggravated by any incident of the Veteran's military service, including the gas chamber training which he is presumed to have undergone. A report of the examination should be prepared and associated with the Veteran's VA claims folder. The examiner must explain any opinion provided, and to include supporting references to the Veteran's medical record. 8. Then, readjudicate the claims. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board is remanding. 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). _________________________________________________ Laura H. Eskenazi 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).