Citation Nr: 1237192 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-21 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, as secondary to service-connected psychophysiological gastrointestinal reaction. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Counsel INTRODUCTION The Veteran had active service from February 1969 to October 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision by the Department of Veterans Affairs (VA) St. Paul, Minnesota, Regional Office (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND By way of history, the Board granted service connection for psychophysiological gastrointestinal reaction in a decision dated July 1973. The Veteran filed an initial claim of entitlement to service connection for posttraumatic stress disorder (PTSD) in April 1999. The RO denied the Veteran's claim in September 1999 on the grounds that he did not have a confirmed PTSD diagnosis related to a corroborated stressor. The Veteran was notified of this decision and provided his appellate rights. He perfected an appeal. The Veteran's claim was remanded in June 2003 and September 2004 for additional evidentiary development, to include providing proper notice, obtaining outstanding records, obtaining clarification from the Veteran about his claimed in-service stressors, issuing a supplemental statement of the case, and affording the Veteran a VA examination. The Board subsequently denied the Veteran's claim by way of an opinion dated March 2005 on the grounds that PTSD was not incurred in or aggravated by service. The Veteran sought to reopen his service connection claim for a psychiatric disorder, claimed as depression, anxiety, and PTSD, in June 2008. The RO issued a decision in October 2008 in which it denied service connection for anxiety and depression on the grounds that there were no current diagnoses of these disabilities and no evidence that these disabilities occurred in or were caused by his period of active service. The RO also denied the Veteran's claim to reopen service connection for PTSD on the grounds that he failed to submit new and material evidence. The Veteran was notified of this decision and provided his appellate rights. He perfected this appeal. In January 2011, the Board reopened the Veteran's service connection claim for PTSD and restyled the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board also remanded the Veteran's service connection claim at that time for additional evidentiary development, to include contacting the Veteran to authorize VA to obtain outstanding private psychiatric records on his behalf, obtaining outstanding VA treatment records, contacting the appropriate Federal agency in order to verify the Veteran's claimed in-service stressors, and affording the Veteran a VA examination. In the past, the Veteran claimed in-service stressors related to participation in combat, as well as involvement in a race riot while stationed in Hong Kong. Thus, the RO must contact the Veteran on remand and request that he provide specific information to include the approximate date and location of the claimed race riot in Hong Kong and the claimed in-service combat. Thereafter, the RO must make a specific determination, based upon the complete record, as to whether the Veteran "engaged in combat with the enemy." The Veteran, however, most frequently indicated that (1) he was involved in a race riot while stationed in Peal Harbor, Hawaii, in July 1969 or 1970; and (2) he participated in a search and rescue operation aboard the USS FECHTELER following an airplane crash while escorting the USS CORAL SEA between January and July 1970. Correspondence from the Defense Personnel Records Information Retrieval System dated May 2011 found no evidence of a race riot at Pearl Harbor as described by the Veteran in 1969 or 1970. Command histories and deck logs from the USS CORAL SEA and USS FECHTELER confirmed that the USS FECHTELER served as escort to the USS CORAL SEA during March 1970 and assisted in an unsuccessful search and rescue operation following an aircraft crash. The pilot of the crashed aircraft, J.P., was presumed dead. The Appeals Management Center issued a memorandum in July 2011 in which it appeared to find that the Veteran's search and rescue stressor described above was sufficiently corroborated. In response to the Board's January 2011 remand order, the Veteran was also afforded a VA psychiatric examination in July 2011. The diagnosis was alcohol dependency and dysthymic disorder, not otherwise specified. An Axis II diagnosis of personality disorder, not otherwise specified, with antisocial personality features, was also noted. A careful review of this examination report, however, shows that it is inadequate for evaluation purposes. Initially, there is no indication of record to show or even suggest to the examiner that the Veteran's search and rescue stressor was sufficiently corroborated. Moreover, while the examiner concluded that the diagnosed conditions were unrelated to his period of service, it is unclear from the opinion the extent to which the Veteran's current psychiatric disorder(s) were proximately due to or aggravated by the service-connected psychophysiological gastrointestinal reaction, if at all. The examiner also failed to discuss the extent to which the current psychiatric disorder(s) were proximately due to or aggravated by the Veteran's post-service alcohol abuse as requested by the Board's January 2011 remand order. See generally, Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the Board's remand order). The Board also points out that ordinarily, personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). However, a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. See VAOPGCPREC 82-90, 56 Fed. Reg. 45711 (1990); 38 C.F.R. § 4.127 (2012). Accordingly, the Board finds that a new VA examination is warranted to address these issues. Additionally, the regulations governing service connection for PTSD were amended, effective July 13, 2010. See 38 C.F.R. § 3.304(f)(3) (2012). The supplemental statement of the case in September 2011 appeared to consider the Veteran's claim under the current regulations. However, the Veteran has not been notified of the revised regulations. The RO must undertake such action on remand. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issue currently on appeal, including any and all private treatment records not already associated with the claims file. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records from July 2011 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must contact the Veteran and request that he provide specific information, to include the approximate date and location of the claimed race riot in Hong Kong and his claimed in-service combat. The RO must also advise the Veteran of the information and evidence needed to substantiate his service connection claim for an acquired psychiatric disorder, to include PTSD. The RO must further notify the Veteran of the amended regulation with regard to PTSD. 38 C.F.R. § 3.304(f)(3). 3. After the above development is completed, the RO must take any appropriate action based on the Veteran's response and then make a specific determination, based upon the complete record, as to whether the Veteran "engaged in combat with the enemy." If so, the RO must accept the Veteran's lay testimony in the absence of evidence to the contrary and as long as it is credible and consistent with the circumstances of service as conclusive evidence of the occurrence of the stressor. If the RO determines that the evidence does not show that the Veteran "engaged in combat with the enemy," the RO must consider all credible supporting evidence developed to show that the Veteran experienced the alleged stressors and determine whether the evidence is sufficient to establish the occurrence of the stressor. With regard to this action, the RO must consider the Veteran's fear of hostile military activity, if it is found consistent with the places, types, and circumstances of the Veteran's service. 4. Thereafter, the RO must prepare a summary for an examiner of the stressor or stressors that it has determined are established by the record, to include the Veteran's fear of hostile military activity if it is found consistent with the Veteran's military service. The examiner must be instructed that only those events may be considered for the purpose of determining whether Veteran was exposed to a stressor in service. In light of the July 2011 memorandum by the Appeals Management Center, any claimed stressor(s) related to the Veteran's March 1970 participation in a joint search and rescue operation with the USS CORAL SEA while stationed aboard the USS FECHTELER is sufficiently corroborated if it is consistent with the Veteran's service. 5. Thereafter, the Veteran must be afforded a VA examination by a psychiatrist to assess the nature and etiology of any psychiatric disorder found. The psychiatrist must ascertain the nature of all psychiatric disabilities and proper diagnoses thereof, to include PTSD, as set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The claims file and all records on Virtual VA must be made available to the psychiatrist, and the psychiatrist must specify in the report that the claims file and Virtual VA records have been reviewed. The psychiatrist must specify the dates encompassed by the Virtual VA records that were reviewed. The psychiatrist must integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the Veteran's psychiatric status. All necessary special studies or tests including psychological testing and evaluation must be accomplished. The examination report must include a detailed account of all pathology found to be present. The RO must specify for the psychiatrist the stressor or stressors that it has determined are established by the record. After a review of the evidence of record, a clinical evaluation, and with consideration of the Veteran's statements, the examiner must provide diagnoses for all psychiatric disorders found. If the diagnosis of PTSD is deemed appropriate, the psychiatrist must specify (1) whether the Veteran's claimed stressor(s) found to be established by the record are sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and the in-service stressors found to be established by the record and found sufficient to produce PTSD. If a psychiatric disorder other than PTSD is found, the VA psychiatrist must opine as to whether any such psychiatric disorder is related to the Veteran's military service, to include as due to any incidents therein. If more than one psychiatric disorder is found, and manifestations of each separate psychiatric disorder cannot be distinguished, the examiner must so state. The examiner must also provide an opinion as to whether there is evidence of an acquired psychiatric disorder superimposed upon a personality disorder. The examiner must discuss the extent to which the currently diagnosed psychiatric disorder(s) were proximately due to or aggravated by the Veteran's post-service alcohol abuse, if at all. Additionally, the examiner must provide an opinion as to whether the currently diagnosed psychiatric disorder(s) are proximately due to or aggravated by the Veteran's service-connected psychophysiological gastrointestinal reaction. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 6. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 8. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 9. THIS APPEAL HAS BEEN ADVANCED ON THE BOARD'S DOCKET. Expedited handling is required. 38 U.S.C.A. § 7107(a)(2); 38 C.F.R. § 20.900(c). No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).