Citation Nr: 1301191 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-34 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from December 1975 to December 1979. This issue comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating action of the Department of Veterans Affairs Regional Office (RO) in New York, New York. In that decision, the RO denied a claim for service connection for PTSD. Given the holding of Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the Board must broadly construe claims for psychiatric disabilities), the fact that the Veteran's November 2007 claim mentioned multiple psychiatric disabilities, and the diagnoses of multiple psychiatric disabilities in the record, the Board has expanded the claim to include all psychiatric disabilities. The issue of a total disability rating for individual unemployability (TDIU) has been raised by the May 2012 Board hearing transcript (p 5), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Service connection for PTSD requires: (1) medical evidence diagnosing this disability in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a link between current symptomatology and the claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2012). (Other parts of § 3.304(f) are not applicable in this case because PTSD was not diagnosed during active duty service; the Veteran did not serve in combat; he was not exposed to "fear of hostile military or terrorist activity"; he was not a prisoner of war and he does not allege in-service personal assault.) In letters dated in April 2008 and May 2012, a VA physician diagnosed PTSD. In the first letter, the reported stressors consisted of confronting a mechanical breakdown, while on open seas; "stressful drills"; firefighting; and once "the engine exploded on me." In the second letter, the reported stressors consisted of being 19 and stationed aboard the USS Savannah where he was frightened by being close to thousands of bombs, "frighted about explosion," confronting mechanical breakdown, stressful drills, fire fighting, and once the "engine exploded on me." It was added that during the "Cuban crisis" while stationed in Grenada he heard gun fire. The Veteran's DD 214 confirms that he was in the Navy and had over 3 years of sea service. Available service personnel records do not show that he was stationed in Grenada, and it is not clear what the "Cuban crisis" refers too. The Veteran is lacking corroboration for his stressor for his claim for service connection for PTSD. The Veteran reported in his December 2008 notice of disagreement a fire pump and engine explosions in September 1976 and August 1977 aboard the USS Savannah; and in March 2010 the service department found no support for these incidents. In November 2010, a VA record showed he was evaluated by a different psychiatrist at another VA and reported new stressors to this clinician (a friend got seriously hurt and there was "cannon fire when they were at areas of conflict"). The Veteran also served aboard the USS Portland, but the Veteran has not reported any specific stressor on that ship. Credible supporting evidence is not of record for any of the reported stressors, except that being on open seas near bombs would appear to be consistent with his sea service. It is not clear whether the VA psychiatrist who provided the diagnosis of PTSD would have found this stressor alone sufficient to support the diagnosis, and the psychiatrist does not appear to have been aware of the results of the efforts to verify the reported stressors. An examination is needed to obtain an opinion that is based on review of the entire record. Stressor corroboration is not required for service connection for other psychiatric diagnoses. Even though at separation in December 1979, a clinical evaluation psychiatrically was normal, the Veteran did have some work performance difficulties while in service and he has alleged in several VA treatment records that he was depressed or anxious while in service. A March 1981 statement, soon after service, from his mother also notes that he had trouble sleeping and experienced irritability (although she attributed these problems to other disabilities) while VA examination reports from 1980 and 1983 do not address psychiatric problems. Current records in the file have shown the Veteran has been diagnosed with many different psychiatric disabilities other than PTSD. This includes: paranoid chronic schizophrenia (see August 2006 record); general anxiety disorder with insomnia (October 2006 VA psychiatry record); and bipolar disorder, rapid cycling with depression, insomnia (September 2007 VA psychiatry record). As there is a low bar as to whether a VA examination is necessary under 38 C.F.R. § 3.159(c)(4)), the Board finds the Veteran should be given a VA examination to determine if any mental illness the Veteran has is related to his service. See McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Also, the Veteran has stated that he saw a VA social worker shortly after service (a May 2012 VA psychiatrist letter stated he had previously seen a VA therapist in 1979) and VA records indicate other VA mental health treatment records may exist (an April 2011 VA psychiatric record notes the Veteran was referred by VA primary care in August 2000 for depression, was followed by other practitioners for a time and was reassigned to that doctor in 2006). Currently the earliest record in the file detailing mental health issues is a March 1990 VA progress note stating the Veteran suffered from alcohol abuse; there's no VA records regarding mental health from about 1992 to 2006. On remand, the Veteran should clarify when he first got mental health treatment from VA and follow up to obtain all VA records should be completed. Finally, the Veteran is receiving Social Security Administration (SSA) disability benefits. At the hearing he said this was not for a psychiatric disability; however, the Board finds these records should be requested to ensure all available information is obtained in developing this claim. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide clarifying information as to when he was stationed in Grenada, what he meant by the "Cuban crisis" and circumstances of the gunfire he was exposed too; and whether any of his claimed stressors occurred aboard the USS Portland. 2. If the Veteran responds to the request for additional information, seek credible supporting information from the service department or other entity in accordance with manual provisions for seeking stressor verification. If additional information is needed, ask the Veteran for that information. 3. Obtain all records of the Veteran's VA mental health treatment; including the reported treatment by a VA social worker in 1979 and regular mental health treatment prior to 2006. Efforts to obtain these records must continue until they are obtained; unless it is reasonably certain that they do not exist or that further efforts would be futile. Notify the Veteran of any missing records; of the efforts made to obtain the records; and of any further action that will be taken with regard to the claim. 4. Obtain records of any SSA disability decisions in response to the Veteran's claims, and the records relied upon in making those decisions. Efforts to obtain these records must continue until they are obtained; unless it is reasonably certain that they do not exist or that further efforts would be futile. Notify the Veteran of any missing records; of the efforts made to obtain the records; and of any further action that will be taken with regard to the claim. 5. After the above development has been completed, schedule the Veteran for an examination by a VA psychiatrist to determine whether the Veteran has a psychiatric disability that is related to service. The Veteran's claims file, to include a complete copy of this remand must be provided to the examiner and the report of examination, or addendum, should note review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation should be accomplished. If a psychiatric disability is diagnosed, the examiner should indicate whether it is at least as likely as not (50 percent probability or greater) related to the Veteran's active service, including an in-service stressor. The examination report should include the complete rationale for all opinions expressed and should reference the credibility finding above. The examiner should provide a rationale for the opinions. If PTSD is diagnosed, the examiner should specify the stressor or stressors supporting the diagnosis. If it is not diagnosed, the examiner should report the criteria that are not met. The examiner should specifically note the opinions provided by a VA psychiatrist in April 2008 and May 2012; the reports of disturbed sleep in 1981. 6. If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC). The case should then be returned to the Board, if otherwise in order. 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).