Citation Nr: 1233589 Decision Date: 09/27/12 Archive Date: 10/09/12 DOCKET NO. 10-15 047 ) DATE ) ) Received from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for PTSD because specific details of the stressor were not shown and because PTSD was not diagnosed. The Veteran submitted a statement identifying additional stressors and details in March 2007. Although the RO accepted the Veteran's statement as a new claim for benefits, because the Veteran identified additional stressors and details and submitted the statement within one year of the November 2006 rating decision denying his claim for benefits, the Veteran's March 2007 is not final as new and material evidence was received. See 38 C.F.R. § 3.156(b) (2011); see also Shade v. Shinseki, 24 Vet. App. 110 (2010) (new and material evidence is not required as to each previously unproven element of a claim). The Veteran requested a hearing before the Board when he submitted his substantive appeal in February 2010. In correspondence dated in August 2010, the Veteran was advised that he was scheduled for a hearing at the Board in January 2011. In a January 2011 statement, the Veteran indicated that he no longer desired a hearing before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND A review of the claims file reveals that a remand is unfortunately once again necessary before a decision on the merits of the claim can be reached. In this case, the Veteran claims that he has PTSD as a result of several in-service stressors. Specifically, the Veteran contends that he witnessed the explosion of the USS Cole while serving aboard the USS Tarawa in October 2000 and assisted with rescue efforts. He also reported that while serving aboard the USS Tarawa a boiler exploded and he had to assist in putting out the fire in October 2000. Finally, he indicated that while serving onboard the USS Tarawa stationed at San Diego Naval Station in September 1998, a pipe exploded and spewed toxic chemicals on board the ship resulting in bodily injury to several sailors. Associated with the claims file are Deck Logs from the USS Tarawa for the month of October 2000. The deck logs indicate that the USS Tarawa did not arrive in Aden Harbor until October 18, 2000, six days after the attack on the USS Cole. Consequently, the Veteran's report of witnessing the attack on the USS Cole and assisting in rescue efforts is disproved. However, the Deck Logs show that a Class C fire was extinguished on October 25, 2000, resulting in minimal damage and no casualties/injuries. With regard to the claimed pipe explosion in September 1998, no Deck Logs dated in September 1998 were requested or associated with the claims file. In order to determine whether the claimed stressor occurred, a request for Deck Logs for the USS Tarawa for the month of September 1998 or other verification of the incident should be attempted. Associated with the claims file are VA outpatient treatment reports dated from September 2006 to March 2010. The records reflect treatment for and a diagnosis of depressive disorder, depression, schizophrenia, paranoid schizophrenia, major depressive disorder, psychotic disorder, and PTSD-like symptoms. The Veteran has indicated that he initially sought treatment for psychiatric symptoms at VA in 2001. Because there are outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain any VA treatment reports not of record dated from 2001 to September 2006 and any records dated since March 2010 should be made. 38 C.F.R. § 3.159(c)(2) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992). A review of the claims file reveals that the Veteran was seen for treatment of his psychiatric disorders at a Vet Center and St. Anthony's. See VA treatment records dated in September 2006 and September 2008. However, no records from any Vet Center or St. Anthony's were identified by the Veteran or requested by the RO. In order to properly adjudicate the claim, a request of records from the Vet Center and St. Anthony's should be initiated. A review of the claims file reveals that the Veteran indicated during VA treatment in May 2007 that he filed a claim for Social Security Administration (SSA) disability benefits. However, it is unclear whether the Veteran is in receipt of SSA disability benefits. The Court of Appeals for Veterans Claims (Court) has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Any available records from the SSA, including any SSA decisions and the medical records relied up by the SSA should be requested and associated with the Veteran's claims file. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence 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, 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. Fear of hostile military or terrorist activity means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2011); 75 Fed. Reg. 39845 (July 13, 2010). The Veteran was afforded a VA examination in August 2008. At that time, the examiner indicated that based on a review of the claims file and a clinical evaluation of the Veteran, the Veteran did not demonstrate mood or anxiety disorders and did not show any symptomatology remotely indicative of schizophrenia or any other psychotic disorder. He also concluded that the Veteran did not meet the diagnostic criteria of PTSD according to DSM-IV. Although the examiner in August 2008 did not diagnose the Veteran with any psychiatric disorder, during the period on appeal the Veteran has been diagnosed with depressive disorder, depression, schizophrenia, paranoid schizophrenia, major depressive disorder, psychotic disorder, and PTSD-like symptoms. McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Consequently, another VA psychiatric examination should be accomplished. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate entity and request copies of the Deck Logs for the USS Tarawa for the month of September 1998 or verification of the pipe explosion in September 1998 resulting in injuries. Any negative responses should be associated with the claims file. 2. Obtain any VA treatment records dated for the period from 2001 to September 2006 and any records dated since March 2010. 3. Contact the Veteran and request that he submit the necessary medical releases including the names and addresses of all non-VA medical providers who have treated him for his psychiatric disorders. Specifically, request that the Veteran identify the relevant information pertaining to his treatment at the Vet Center and St. Anthony's. After receipt of the relevant medical releases, attempt to obtain the records. Any negative responses should be associated with the claims file and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 4. Request, directly from the SSA, complete copies of any determination(s) on a claim for disability benefits from that agency and the medical documentation considered by SSA, including any re-evaluations. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing pursuant to 38 C.F.R. § 3.159(e). 5. Then, schedule the examiner for a VA psychiatric examination. The examiner must review the claims file and must note that review in the report. The report of examination should include a thorough rationale for all opinions expressed. Any necessary psychiatric testing should be accomplished. The examiner should provide the following information: a) Provide a full multiaxial diagnosis pursuant to DSM-IV. Specifically state whether each criterion for a diagnosis of PTSD is met. b) If a diagnosis of PTSD is appropriate, comment upon the link between the current symptomatology and any corroborated in-service stressor reported by the Veteran, including the fire in October 2000, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's active service. As the Veteran reports that a stressor includes his fear of hostile military or terrorist activity, the examiner should opine as to whether this is adequate to support a diagnosis of PTSD, providing a discussion of how such diagnosis confirms with the DSM-IV criteria. It is noted that "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.104(f), as amended by 75 Fed. Reg. 41092 (July 15, 2010). c) With respect to any other psychiatric disorders found on examination and noted in the claims file, the examiner should specifically state for each diagnosis, including depressive disorder, depression, schizophrenia, paranoid schizophrenia, major depressive disorder, psychosis not otherwise specified and psychotic disorder, whether it at least as likely as not (50 percent or greater probability) began in or is related to the Veteran's active service. 6. Then, readjudicate the claim. If action 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 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. 2011). _________________________________________________ S. S. TOTH 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).