Citation Nr: 1302941 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 09-34 394 ) 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 a mood disorder, depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from February 1992 to January 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 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 The Veteran contends that he suffers from a psychiatric disorder due to events he experienced during active service, including while taking part in operations in Somalia in 1993, and therefore service connection is warranted for disability due to such psychiatric disorder. The record also raises the issue of whether he has a psychiatric disorder caused or aggravated by a disability for which service connection has already been established. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). Service connection may also be granted for a condition that has been caused or aggravated by a condition for which service-connection has already been established. 38 C.F.R. § 3.310 (2012). VA's duty to assist a claimant in substantiating a claim for VA disability compensation benefits includes providing an examination and obtaining an expert opinion if certain factors are present. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Those factors are: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. The third factor has a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA treatment records document the Veteran's mental health history. In March 2001 he was diagnosed with a mood disorder due to his general medical condition. Those notes refer to a medical history of neurocardiogenic syncope. May 2001 notes document that he denied combat service and that his past medical history included depression but not PTSD. In May 2003, the Veteran reported that he had been experiencing depression since 1998, the depression had recently worsened, and he was under stress due to recent events. He also reported that he suffered from dreams involving his experiences while serving on active duty in Somalia. He was again diagnosed with depression in September 2004. In November 2006, the Veteran first filed a claim of entitlement to service connection for a psychiatric disorder; specified by him as "PTSD." In a December 2006 statement, the Veteran reported three in-service events that he believed were related to his current psychiatric symptoms. First, during his service in Somalia, a woman accompanied by a child asked him and fellow marines for food, 30 minutes after she left, the Veteran heard a gunshot and found the woman dead from a gunshot to the head and he was later told that she was shot for talking to U.S. marines. Second, that while serving in Somalia, he stepped on a corpse in a shallow grave. Third, that while in a December 1992 "live fire" training exercise at Vazquez Island, Puerto Rico, he accidently was caught in a cross fire, and that crossfire involved the wounding of a corpsman and another marine. He reported that this took place while assigned to the Battalion Landing Team, 1st Battalion, 2nd Marine Regiment, 24th Marine Expeditionary Unit. September 2008 notes document diagnoses of PTSD and depressive disorder, not otherwise specified. At that time he reported that he served in a combat zone in Somalia in March - April 2003, taking emergency leave from that duty due to a death in the family. He also reported that he served in combat. The clinician recorded a different account of the event involving a woman and child in Somalia, reporting that the Veteran stated he had observed the woman being shot in the head while holding the child. August 2009 VA treatment records document a diagnosis of major depressive disorder, recurrent. A listing of the Veteran's Combat History and Expeditions in his service personnel records document that he participated in Operations Cease Fire, Restore Hope, and Continue Hope between March and July 1993 while serving with the 24th Marine Expeditionary Unit. Although the Veteran characterized his psychiatric disorder as "PTSD," under the facts of this case VA must read his claim to include one of entitlement to service connection for disability resulting from any diagnosed psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2007) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). During the course of the Veteran's claim and appeal, VA revised its regulations regarding entitlement to service connection for PTSD. That revision applies to this case. As that regulation now stands, it provides that 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. 38 C.F.R. § 3.304(f)(3) (2012). The Veteran's description of his reported confrontation with the woman killed in Somalia appears to fall within the § 3.304(f)(3) definition of "fear of hostile military or terrorist activity." The Veteran has been diagnosed with a psychiatric disorder during the course of his claim and appeal, service personnel records establish his service in Somalia, and he has reported experiencing symptoms related to that service, including his report several years prior to filing his claim. These facts satisfy the factors that must be present to trigger VA's duty to provide a medical examination and obtain an expert opinion. As VA has not yet met this duty, a remand is necessary. Additionally, it appears that the incident that the Veteran described as occurring on Vasquez Island in December 1992 is one capable of verification. On remand, the RO must make efforts to verify that incident. This should include a search of any available unit records. As the Veteran has been diagnosed with a mood disorder due to his general medical condition and service connection has been established for osteotomy / bunionectomy and right hallus (rated as 30 percent disabling) and internal derangement, left knee (rated as noncompensable), a medical opinion should be obtained as to whether he has a psychiatric disorder that has been caused by or aggravated by a service-connected disability. The Board also notes that the September 2008 VA treatment notes document the Veteran's report of a 2 to 3 day hospitalization for psychiatric symptoms in 1998. Treatment records from that hospitalization are not associated with the claims file. As prior treatment for psychiatric symptoms is relevant to the claim on appeal, VA should contact the Veteran and make efforts to obtain any such existing records. There is also evidence that the Veteran initiated a claim for disability benefits administered by the Social Security Administration (SSA) sometime in 2008. Notably, there are reports of attempts by the SSA to obtain medical records. On remand, the VA should contact the SSA and request a decision it might have made along with the records it considered in making its decision. Finally, as indicated, claims file reflects that the Veteran receives mental health services through the Zephyr Hills VA Outpatient Center (VAOC) and the Tampa VA Medical Center. However, the claims file only includes treatment records from those providers dated to August 2009 and April 2009, respectively. Any additional records from that facility, or any other VA facility, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran and his representative requesting that the Veteran identify the hospital where he received treatment for psychiatric symptoms in 1998 and requesting that he complete the required release / authorization for VA to assist him in obtaining records of that treatment. The AMC should also obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his claimed psychiatric disorder. 2. Regardless to whether he responds to (1), obtain VA clinical records pertaining to the Veteran's claimed psychiatric from the Zephyr Hills VAOC since August 2009 and the Tampa VAMC since April 2009. 3. Obtain the Veteran's SSA records, including the medical evidence used to determine disability eligibility. If no SSA records are available, it should be so noted in the claims file. 4. Send an appropriate request to the Joint Services Records Research Center (JSRRC) or any other appropriate agency to attempt to corroborate the Veteran's claimed stressor involving a "live fire exercise" on Vasquez Island in December 2992, wherein at least two service members were wounded. He reports that this took place while assigned to the Battalion Landing Team, 1st Battalion, 2nd Marine Regiment, 24th Marine Expeditionary Unit. All verification attempts, and any negative responses, should be fully documented in the claims file. 5. After completing the above development, schedule the Veteran for a VA psychiatric examination, to be conducted by a VA staff or contracted psychiatrist, or a VA staff or contracted psychologist. The claims file, including a copy of this Remand, should be provided to the examiner, the examiner should review the claims file in conjunction with the examination, and the examiner should annotate his or her report as to whether the claims file was reviewed. The examiner is asked to accomplish the following: a. The examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressors. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor or stressors underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). In so doing, the VA examiner should determine whether any claimed stressor is related to his fear of hostile military or terrorist activity. The VA examiner should confirm whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed 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. b. If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder either began during or was otherwise caused by the Veteran's military service. c. If the examiner determines that clinical evidence does not support a diagnosis of PTSD and that none of the diagnosed psychiatric disorders had onset or were caused by the Veteran's active service, the examiner should provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a diagnosed psychiatric disorder that was caused by a service-connected disability. d. If the examiner determines that clinical evidence does not support a diagnosis of PTSD and that none of the diagnosed psychiatric disorders had onset or were caused by the Veteran's active service, and that a service- connected disability did not cause a diagnosed psychiatric disorder, the examiner should provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a diagnosed psychiatric disorder that was aggravated by a service-connected disability. The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the back disorder (i.e., a baseline) before the onset of the aggravation, as well as after the aggravation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 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).