Citation Nr: 1300443 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-33 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and an anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service in the United States Navy from April 1988 to August 2002. This appeal to the Board of Veterans Appeals (Board) originally arose from an August 2006 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO denied service connection for PTSD. The Veteran appealed this rating action to the Board. In September 2009, after the RO's issuance of a July 2009 Statement of the Case that addressed the issue of entitlement to service connection for PTSD, it received additional private treatment reports. As these reports disclose treatment for an unrelated orthopedic disability, they are not pertinent to the appeal. Thus, a remand to have the RO initially consider this evidence in the first instance is not necessary. 38 C.F.R. § 20.1304 (2012). A remand, however, is necessary for the reasons outlined below. The Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder in view of the medical evidence of record and pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that when an appellant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. For the reasons set forth below, the Board finds that additional substantive development is required in this case. Specifically, to schedule the Veteran for a VA examination to determine the etiology of his acquired psychiatric disorder. The Veteran maintains that he has PTSD as a result of the following stressors that occurred while he was served aboard the USS AMERICA (CV 66): (i) Witnessing a sailor fall into an escape chute in January 1991; (ii) On February 25, 1991, an AWAC landed and hit an EA-6B's in-flight fueling probe that caused fuel to spew; (iii) On or about April 24, 1984, an F-14 Starfighter 201 crashed onto the flight deck of the USS AMERICA (CV 66) and a missile came out of the aircraft and landed next to the Veteran, who was in the port cat walk at a refueling station; and, (iv) Between December 1990 and April 1991, parts (e.g., wing and propeller) of an (E-2 Hawkeye were flown into the air and caused injuries. (See Veteran's stressor statement, dated in mid-May 2005). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); 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 the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see Cohen v. Brown, 10 Vet. App. 128 (1997). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010). This amendment is not applicable to the Veteran's claim because his stressors are not based on a fear hostile military or terrorist activity. Id. The Veteran's service personnel records confirm that he served aboard the USS AMERICA (CV 66) from January 1986 to August 2007, in part, as a refueling crewman. The United States Armed Services Center for Unit Records Research (then known as CURR) has confirmed that an F-14 struck the back end of the USS AMERICA's flight deck on June 17, 1984. (The Veteran originally claimed April 1984, but stated that he might have had the incorrect date.) Thus, the crux of the Veteran's claim hinges on whether he currently has an acquired psychiatric disorder, to include PTSD, that is etiologically linked to the above-cited stressful event or to an incident of service origin. The Veteran's service treatment records show that in early December 1990, he was admitted to the United States Naval Hospital in Portsmouth, Virginia for suicidal ideation and a questionable suicidal gesture 24 hours prior to admission in the context of marital and occupational stressors. At discharge, the Veteran was diagnosed with a resolved adjustment disorder with a depressed mood and occupational and marital problems. In January 1991, the Veteran was referred to the medical department from the chaplain's office. It was noted that the Veteran was having marital and occupational-related difficulties. At that time, he had suicidal ideation that involved the use of scissors but without any intent. The Veteran was referred to counseling. He stated that he wanted to return to duty. An April 1994 Annual examination report reflects that the Veteran was found physically qualified for active duty. On an accompanying Report of Medical History, the Veteran denied having any nervous trouble of any sort; depression or excessive worry; frequent trouble sleeping; and, loss of memory. He reported that he had attempted suicide. In the notes section of the report, the examining physician noted that aside from high frequency hearing loss and a June 1994 sphincterotomy, the Veteran was otherwise healthy. The post-service private and VA treatment records show that the Veteran does not currently have a confirmed diagnosis of PTSD as defined by the above-cited regulation. VA treatment reports, dated in February 2003 and November 2004, reflect that PTSD screenings of the Veteran were negative. A March 2005 report, prepared by M. A. M. D., contains a diagnosis of "Rule Out Post-Traumatic Stress Disorder". A May 2006 VA treatment report shows that a PTSD screening of the Veteran was again negative. An undated VA treatment report contains a provisional diagnosis of questionable PTSD. The Veteran was afforded a VA psychiatric examination in July 2009. A VA psychologist opined, after an extensive mental evaluation and psychiatric testing of the Veteran, as well as a review of the claims file, diagnosed the Veteran with an anxiety disorder. The VA psychologist concluded that the Veteran did not have PTSD symptomatology that satisfied the required criteria under DSM-IV for a diagnosis of PTSD. The VA psychologist determined that the Veteran did not exceed the recommended cut scores for a diagnosis of PTSD on two objective measures of the disorder. Conversely, the VA psychologist also noted that the Veteran's psychological testing results were consistent with "very mild PTSD." The VA psychologist then opined, "PTSD is not caused by or a result of an in-service event." The July 2009 VA psychologist's findings are conflicting as to whether the Veteran currently has a diagnosis of PTSD as defined under 38 C.F.R. § 4.125. The July 2009 VA psychologist also concluded that the true cause of the Veteran's anxiety disorder was unknown and that it would require him to resort to mere speculation. In Jones v. Shinseki, 23 Vet. App. 382, 390 (2010), the Court found that the Board had erred by relying on medical opinions that were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claim. The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Jones and these other precedent cases are applicable here since the VA examiner stated that an opinion could not be provided without resorting to mere speculation, but without providing any rationale for this inability to comment, as demanded by the Court. Accordingly, the Board finds that a remand is required to afford the Veteran another mental disorders examination to determine whether he currently has a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 and to determine whether his diagnosed anxiety disorder is etiologically related to, or had its onset during, his period of military service. Finally, the claims file reflects that the Veteran receives ongoing mental health services through the Biloxi VA Medical Center (VAMC). The claims file only includes treatment records from the Biloxi VAMC dated up to May 2006. Any additional records should be obtained from that facility. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. Obtain VA clinical records pertaining to the Veteran's claimed psychiatric disability from the Biloxi VAMC, or any other identified VA facility, for the period from May 2006 to the present. 2. Schedule the Veteran for a VA mental disorders examination to determine the exact nature and etiology of any acquired psychiatric disorder found on examination. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The examiner must review the claims file, including a copy of this Remand and the Veteran's psychiatric history and findings as documented upon prior psychiatric examinations and treatment. This review should be so indicated in the examination report. The examiner must be informed of the Veteran's current and past assertions relating to the etiology of his acquired psychiatric disorder, to include PTSD and an anxiety disorder. The examiner is advised that, to the extent deemed relevant and credible, lay statements may be used to support a diagnosis or an assessment of etiology as related to service. If the examiner judges questions concerning the Veteran's credibility to be at issue, the examiner should explicitly note any such questions, either as raised within the record or based on the Veteran's assertions upon examination, in combination with examination findings. If no questions are raised concerning the Veteran's credibility, then the examiner should have no basis to reject the Veteran's assertions concerning the cause or etiology of his claimed mental disorder(s). Based on a review of the clinical findings and the claims file, the VA examiner should provide opinions to the following questions: (i) Does the Veteran have symptomatology that satisfies the required criteria under DSM-IV for a diagnosis of PTSD as defined under 38 C.F.R. § 4.125, and if so, is the current diagnosis of PTSD related to a verified in-service stressful event? The examiner is hereby informed that the following in-service stressor has been confirmed: On June 17, 1984, an F-14 hit the back end of the USS AMERICA's flight deck. (ii) The examiner must also provide a medical opinion indicating whether it is at least as likely as not (e.g., a 50 percent or greater probability) that an acquired psychiatric disorder, other than PTSD, to include but not limited to an anxiety disorder, had its onset in service or is otherwise etiologically related to the Veteran's period of active military service, such as the confirmed stressor of an F-14 aircraft (Starfighter 201) striking the back end of the flight deck of the USS AMERICA (CV-66) on June 17, 1984. In formulating his/her responses to the above-cited questions, the examiner must review the service treatment records, reflecting that the Veteran was diagnosed as having an adjustment disorder with depressed mood due to occupational and marital problems in December 1990; service personnel records; and post-service private and VA treatment and examination reports with specific attention to the July 2009 VA examination report, wherein the examiner concluded, in part, that he was unable to provide an opinion as to the etiology of the Veteran's anxiety disorder without speculation. The examiner should provide a complete explanation for his/her opinions. The examiner should include in the examination report the complete rationale for any opinion expressed. If the examiner is unable to address any inquiry sought above, then he or she should explain why. If the examiner indicates that an opinion cannot be supplied "without resorting to mere speculation," the examiner is asked to indicate whether this is because further information would be needed or because the limits of medical knowledge have been exhausted. If further information is needed, the examiner should specify exactly what further information is necessary. 3. Readjudicate the Veteran's claim on appeal. If the benefit sought on appeal remains denied, the RO must issue a Supplemental Statement of the Case to the Veteran and his representative that addresses all evidence received since issuance of the July 2009 Statement of the Case. Prior to recertifying the appeal to the Board, the RO must afford the Veteran's representative an opportunity to review the claims file and prepare a written argument. The Veteran 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. 2012). _________________________________________________ MICHAEL A. HERMAN 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).