Citation Nr: 1237315 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 09-45 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran requested a travel Board hearing in the November 2009 substantive appeal. He was scheduled for a hearing in August 2012; however, he notified the RO that he would not be able to attend that hearing. The RO rescheduled the Board hearing for October 2012; however, the Veteran failed to appear at the hearing. The Veteran did not request to reschedule the hearing or provide the Board with good cause for missing the hearing. Therefore, the request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board acknowledges that the Veteran expressly claimed service connection for PTSD. However, the United States Court of Appeals for Veterans Claims has held that the scope of a disability claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In the present case, there is competent medical evidence that shows the Veteran has been diagnosed with PTSD and anxiety. Accordingly, the Board finds that his claim is more appropriately characterized as entitlement to service connection for an acquired psychiatric disability. 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 After a review of the record, the Board concludes that a remand is necessary prior to adjudicating the issue on appeal. The Veteran contends that he has PTSD related to his active military service. A June 2007 VA treatment record shows that the Veteran reported that he was physically abused while he was in basic training at Fort Polk. He explained that a Sergeant hit him in the face several times. He was diagnosed with anxiety and the psychologist noted that his anxiety was exacerbated by unjust treatment and physical injury he incurred during basic training. Furthermore, the Veteran testified to harassment and bad treatment during the February 2010 DRO hearing. See DRO hearing transcript at 12. The Board notes that there are special development procedures that pertain to the processing of claims of entitlement to service connection for PTSD based on personal assault. VA has special evidentiary development procedures, including the interpretation of behavioral changes by a clinician and interpretation in relation to a medical diagnosis. Patton v. West, 12 Vet. App. 272 (1999) (citing VA Adjudication Procedural Manual M21-1, Part III, paragraph 5.14(c)). Under 38 C.F.R. § 3.304(f)(3) (2012), VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavioral changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In this case, the Veteran has not received the required notice. On remand, the RO should issue notice to the Veteran explaining the evidence necessary to corroborate a stressor during service to support his claim for PTSD due to personal assault, pursuant to 38 C.F.R. 3.304(f). The Board observes that a June 2007 treatment record shows that a VA psychologist provided a diagnosis of anxiety based on having to perform life-threatening military operations for which the Veteran had little training and he had to perform such operations in a hostile environment. In this regard, the Veteran reported to the psychologist that he was a truck driver of hazardous material in Germany. He drove fuel trucks in inclement weather and he was in constant anxiety of an explosion. A September 2007 VA treatment record shows a diagnosis of PTSD related to intense anxiety related to driving fuel tankers due to inclement weather or a bullet fired to the tanker. The Veteran's service personnel record reveals that the Veteran was a truck driver in Germany. Furthermore, the June 2007 VA treatment record shows that the VA psychologist also indicated that the diagnosis of anxiety was the alleged physical injury that occurred during basic training. In light of the foregoing, the Board concludes that the Veteran should be provided with a VA examination to determine if his diagnoses of PTSD and/or anxiety are related to active military service to include fear of hostile military activity and/or personal assault. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) to include advising the Veteran that an in-service personal assault stressor may be corroborated by evidence from sources other than service records, as defined in 38 C.F.R. § 3.304(f)(3). All specific examples of alternative sources of evidence listed in 38 C.F.R. § 3.304(f)(3) must be included in the notification to the Veteran. The Veteran should be afforded an appropriate period of time for response to all written notice and development as required by VA law. 2. Thereafter, schedule the Veteran with a VA psychiatric examination by a VA psychologist or psychiatrist to determine the identity and etiology of any psychiatric disorder that may be present to include PTSD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for PTSD and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to provide opinions on the following: a. Whether the Veteran has PTSD and if so, please explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should specifically determine whether the claimed in-service stressors, including truck driving in Germany, that are consistent with the Veteran's service were sufficient to produce PTSD. If the examiner determines that the Veteran has PTSD related to the claimed in-service stressor of personal assault, the examiner should review the claims folder and render an opinion as to whether there is evidence of changed behavior after the alleged assault or any other evidence of record, which would be consistent with the alleged trauma. b. If the Veteran is diagnosed with any other psychiatric disorder, then the examiner is requested to provide an opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater probability) that such psychiatric disorder is related to active military service to include any incident in service that would be consistent with the circumstances, conditions or hardships of such service. In determining whether the Veteran has PTSD or any other psychiatric disorder related to service, the examiner is asked to review and discuss the lay statements from the Veteran in the claims file and during the examination and the medical evidence of record to include the VA treatment records dated in June 2007 and September 2007. The examiner should provide an explanation for all conclusions reached. 3. Upon completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's service connection claim for a psychiatric disorder, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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. 2012). _________________________________________________ MILO H. HAWLEY 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).