Citation Nr: 1218878 Decision Date: 05/29/12 Archive Date: 06/07/12 DOCKET NO. 07-03 394A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from August 1951 to August 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the Houston RO. A copy of the hearing transcript is associated with the claims folder. By decision dated April 2011, the Board denied a claim of service connection for PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an order dated December 9, 2011, the Court remanded the case to the Board pursuant to the terms of a Joint Motion for Remand (JMR). 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 The parties to the JMR have determined that the claim presented by the Veteran contemplates a service connection claim for all currently diagnosed acquired psychiatric disorders rather than just limited to the PTSD diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim should focus upon the symptoms the claimant is attempting to service-connect however diagnosed). Accordingly, the Board has rephrased the issue on the title page. In this case, the Veteran has generally alleged manifesting PTSD as a result of the following stressors: * duty aboard a destroyer tender which provided combat support to naval ships which bombarded the North Vietnam coast; * witnessing plane crashes; * performing ropeline ship transfers of sick, injured or deceased soldiers in rough waters; * an incident between October to November 1953 where he helped retrieve a fellow sailor who had fallen overboard while performing duties in the harbor of Yokosuka, Japan; * gun misfiring incidents during training sessions with the potential for accidental explosions; * an incident of being mistreated and interrogated by military police; * incidents of sexual harassment while showering; and * an attempted sexual assault while he was sleeping in his bunk. | The Veteran's VA clinical records reflect various psychiatric diagnoses which include PTSD, major depressive disorder, anxiety, dysthymia, depression, and memory loss. A July 2004 VA psychiatrist evaluation reflected a diagnosis of PTSD related to military sexual trauma (MST) due to the Veteran's report of frequent flashbacks, nightmares and instrusive thoughts of being molested in the common showers. In April 2005, a VA Compensation and Pension (C&P) examiner found that the Veteran did not meet the criteria for a PTSD diagnosis. This examiner found a diagnosis of anxiety disorder not otherwise specified (NOS) with mixed anxious and depressed features. It was observed that the Veteran was unwilling to reveal much detail pertaining to the alleged MST events. Notably, the Veteran has generally provided vague and somewhat inconsistent descriptions regarding the onset of his psychiatric symptoms and his claimed stressors. However, the Board observes that the Veteran has voiced a reluctance to speak about his military stressors. After his April 2005 VA C&P examination, the record includes additional details of the alleged MST events. Given the expanded scope of the claim pursuant to the JMR, the Board will request further development of this claim. On remand, the Board will determine whether the Joint Service Records Research Center (JSRRC) can verify the alleged incident in the period from October to November 1953 where the Veteran helped retrieve a fellow sailor who had fallen overboard while performing duties in the harbor of Yokosuka, Japan. Additionally, with respect to the MST event(s), the Board will request an additional examination of the Veteran to determine whether he meets the criteria for a PTSD diagnosis and, if so, whether his service records demonstrate any changes in behavior which can be clinically interpreted to corroborate the existence of an MST event. The Board further observes that, effective July 13, 2010, VA revised its regulations to relax the evidentiary stressor verification requirements when a veteran was exposed to fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f). Under these revisions, 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with 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 stressor. Id. The Veteran has generally described watching other naval ships firing their guns on the Korean mainland. To date, the Veteran has not reported coming under enemy fire or having a fear of coming under enemy fire. At this time, the Board finds that the revised criteria pertaining to fear of hostile military or terrorist activity do not apply. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder clinical records of the Veteran's psychiatric treatment at VA since December 2005. 2. Contact the JSRRC and request verification of the following event: * whether, between approximately October to November 1953, there is documentation that the Veteran helped retrieve a fellow sailor who had fallen overboard while performing duties aboard the U.S.S. Bryce Canyon (AD-36) in the harbor of Yokosuka, Japan; the JSRRC is requested to perform a search of deck logs and any additional relevant information. 3. Upon completion of the above, schedule the Veteran for appropriate VA examination to determine the nature and etiology of his psychiatric disorder(s). The claims folder contents must be made available to the examiner for review. Following interview of the Veteran and review of the claims folder, the examiner is requested to provide opinion on the following questions: a) If the examining physician finds that the Veteran meets the criteria for a PTSD diagnosis, he/she should specifically identify which stressors are linked to the PTSD diagnosis; (i) if the stressor involves an MST event, the examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service; OR, alternatively, b) If the examining physician finds that the Veteran does not have PTSD, he/she should provide opinion as to whether it is at least as likely as not (probability of 50% or greater) that any currently diagnosed psychiatric disorder was first manifested in service and/or is causally related to event(s) in service? For purpose of examination and opinion, the examiner is specifically requested to consider and address the following: * the Veteran's service aboard a destroyer tender which provided combat support to ships firing upon the Korean mainland; * the Veteran's vague allegations in light of his reported discomfort in disclosing MST events; * his allegations of depression since service; and * whether there is any medical reason to accept or reject the Veteran's allegation that his depression has been chronic since service and that his current symptoms are attributable to the claimed events in service. A rationale must be provided for the opinions offered and, if the requested opinion cannot be provided on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewing physician should clearly and specifically so specify and explain why this is so. 4. Thereafter, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The appellant 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 Supp. 2009). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2011).