Citation Nr: 1302965 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 10-26 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder as secondary to service-connected right ear hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). In that rating decision, the RO denied the claim for entitlement to service connection for major depression. In February 2012, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A copy of the hearing transcript has been associated with the claims folder. The Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that "when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled." In light of this holding and the fact that the Veteran also has been diagnosed with various psychiatric diagnoses, to include major depressive disorder and posttraumatic stress disorder (PTSD), the issue has been recharacterized above. The Board is aware that the Veteran previously filed a claim for service connection for PTSD, which the RO denied in a July 2009 rating decision. The Veteran initiated an appeal by filing a notice of disagreement, but subsequently withdrew his claim prior to being issued a statement of the case, and the July 2009 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). Although the Veteran has indicated that he no longer wishes to pursue a claim for PTSD, given consideration of Clemons holding as well as the Veteran's February 2012 testimony regarding his previous diagnosis of PTSD, the Board finds that PTSD should be considered as a part of the current acquired psychiatric disorder claim on appeal. In this regard, the Board further notes that since the final July 2009 rating decision, VA regulations governing service connection for PTSD have been liberalized and now provide a more relaxed evidentiary standard for establishing the required in-service stressor in certain cases. 75 Fed. Reg. 39843 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). 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 seeks entitlement to service connection for an acquired psychiatric disorder, to include major depression and PTSD. He has presented claims for both direct service connection, and service connection secondary to the service-connected right ear hearing loss and tinnitus. After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claim on appeal must be remanded for further evidentiary development. The record shows that the Veteran failed to appear for a VA psychiatric examination scheduled in May 2011. During the February 2012 Board videoconference hearing, the Veteran testified that he did not receive notice as to the date of the examination until afterward in the June 2011 supplemental statement of the case (SSOC), which informed him that he failed to report. There is no documentation in the record that shows that the Veteran was notified of his scheduled VA examination prior to the date of that examination. Under the circumstances, the Board finds that an attempt should be made to schedule the Veteran for another VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. See 38 C.F.R. §§ 3.158 and 3.655 (2012). The Board observes it is unclear from the medical evidence whether the Veteran has a current diagnosed acquired psychiatric disorder that is related to either his period or as secondary to his service-connected right ear hearing loss and tinnitus. Service treatment records show that upon enlistment in August 1972, the Veteran received a normal psychiatric evaluation. In November 1973, the Veteran underwent a psychiatric consultation because his commanding officers felt that he was an instigator in racial oriented upheaval activities. Based on clinical evaluation, the Veteran was assessed with antisocial personality disorder that existed prior to enlistment. His January 1974 separation examination report, however, shows that he again assessed with a normal psychiatric evaluation. He also denied any psychiatric symptoms on the associated report of medical history. Post-service VA and private treatment records show various psychiatric diagnoses, including PTSD, depression, and polysubstance abuse. A September 2009 VA mental health treatment note shows an Axis I diagnosis of PTSD. In an October 2009 VA treatment note, the Veteran's treating clinical psychologist noted that the Veteran reported that he had chronic depression "secondary to noise in both of [his] ears". The Veteran also provided a history of witnessing the death of a friend from a drug overdose as well as the severe beating of another soldier that resulted in death during his period of service. Both events allegedly occurred while the Veteran was stationed in Okinawa in 1973. The Veteran was assessed with major depression secondary to medical conditions. However, the more recent VA treatment records dated in 2010 no longer reflect diagnoses of depression or PTSD. The Board observes that the RO had denied the Veteran's PTSD claim because of the lack of current diagnosis of PTSD that was related to verified inservice stressor events. See rating decision dated in July 2009. The regulations pertaining to PTSD were amended during the pendency of this appeal, and 38 C.F.R. §3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity." Such a location is evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. In addition, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. Id. The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service-connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date. Thus, the amended regulation applies in this case as the Board has recharacterized the Veteran's claim to acquired psychiatric disorder, to include PTSD. As noted, the Veteran claims that he has an acquired psychiatric disorder related to his period of service, and in the alternative, as secondary to his service-connected right ear hearing loss and tinnitus. In this regard, the Board notes that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007).) Here, it remains unclear whether the Veteran has current diagnoses of major depression or PTSD. Diagnoses of major depression and PTSD were reflected in the VA treatment records dated in 2009; however, the prior and subsequent VA treatment records are replete with reference to diagnoses of alcohol dependence and polysubstance abuse. Given the good cause demonstrated for failing to show to the scheduled May 2011 VA examination as well as regulatory changes concerning service connection for PTSD, the Board is of the opinion that a VA examination would be probative to ascertain whether the Veteran's current acquired psychiatric disorder is related to service, to include as proximately caused by his service-connected disabilities, or whether he has PTSD as a result of a fear or hostile or terrorist activity. There is no medical opinion of record that is adequate for adjudication purposes, given the scope of the claim on appeal. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). It is noted that to a secondary service connection theory of entitlement may be granted for a disability that is proximately due to or the result of an established service- connected condition, or when a service-connected disorder aggravates another disability. 38 C.F.R. § 3.310 (2010); Allen v. Brown, 7 Vet. App. 439 (1995). Prior to the examination, all outstanding medical records should be obtained. In particular, the Board notes that during the February 2012 videoconference hearing, the Veteran testified that he sought treatment for psychiatric symptoms in the 1970s from a VA medical facility in Augusta, Georgia. The record does not reflect that any attempt has been made to obtain those records and associated them with the claims folder. Also, the record has not been updated with the Veteran's VA treatment records since 2010. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain any outstanding VA or private pertinent treatment records identified by the Veteran. In particular, attempts should be made to obtain all the Veteran's outstanding treatment records from VA medical facility in Augusta, Georgia in the 1970s as well as his treatment records from VA Medical Center in Tulsa, Oklahoma since 2010. 2. Send a letter to the Veteran informing him of the July 2010 revisions to the regulations pertaining to service connection for PTSD under 38 C.F.R. § 3.304(f). 3. Ask the Veteran to submit a completed VA Form 21-0781, in order to obtain more detailed information about his claimed stressful experiences and events while he served in Okinawa in 1973. 4. Thereafter, the Veteran should be afforded an examination by a VA psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should review the claims files prior to completing the examination report. Based on the review of the claims files and examination of the Veteran, the examiner should identify: (1) whether the Veteran currently has PTSD under the diagnostic criteria of DSM-IV; and if so, whether such PTSD is due at least in part to a verified in-service stressor event or fear of hostile action during active service. (2) whether the Veteran has any other current diagnosed acquired psychiatric disorders present during the period of this claim, and if whether such diagnosed disorder is at least as likely as not (i.e., at least 50 percent probable) originated during service, is etiologically related to service, or is caused by or aggravated by his service-connected disabilities. For purposes of this analysis, aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The VA examiner should consider and discuss the Veteran's reported history and contentions, as well as, any other pertinent medical nexus evidence of record, to include the notation in the October 2009 VA mental health treatment record. The rationale for all opinions expressed must be provided. If the examiner is unable to provide the requested opinion, he or she must explain why the opinion cannot be provided. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the AMC should adjudicate the expanded claim for service connection for acquired psychiatric disorder, in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the Veteran's satisfaction, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. 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). _________________________________________________ DAVID L. WIGHT 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).