Citation Nr: 1303049 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-03 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from January 1966 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In a July 2005 rating decision, the RO denied service connection for PTSD. The Veteran submitted an August 2005 notice of disagreement and perfected his appeal in a timely December 2006 substantive appeal (via a VA form 9). In March 2008 correspondence from his representative, it was indicated that the Veteran "wanted to drop this issue." Then, the following month, in April 2008, the Veteran submitted a claim in which he requested service connection for readjustment mood disorder. He stated that he believed that his symptoms are very similar in nature to that of PTSD, but that his VA psychiatrist thought the most accurate diagnosis was readjustment mood disorder. He then went on to request that the same symptoms be considered as well as the evidence that was considered with his PTSD claim. No attempt was made to verify whether the Veteran actually wished to withdraw his claim for service connection for PTSD or whether he wanted to expand it to include other diagnosed psychiatric disabilities. Furthermore, during the April 2012 Board hearing, the Veteran provided testimony in regards to claims for service connection for PTSD and readjustment mood disorder. In light of the ambiguity surrounding the Veteran's intent to continue his appeal as to the claim for PTSD, the Board finds that the Veteran has not withdrawn his appeal in accordance with 38 C.F.R. § 20.204 and that his claim for service connection for PTSD remains pending. Moreover, in light of the Veteran's variously diagnosed psychiatric disabilities, the Board has re-characterized the service connection claim to include any psychiatric symptomatology consistent with 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 issue of entitlement to service connection for erectile dysfunction has been raised by the record, 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 The Veteran contends that he has an acquired psychiatric disability related to his active service, to include his service in the Republic of Vietnam. 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). A determination that a Veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a Veteran engaged in combat may include the Veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). 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). Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. For purposes of this paragraph, "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. Id. at 39852. Post-service VA, Vet Center, private treatment records show that the Veteran has been diagnosed with PTSD, major depression, anxiety disorder not otherwise specified, and readjustment mood disorder. The Veteran contends that in Vietnam he was subject to incoming sniper fire and mortar attacks near the Da Nang air strip. He submitted a buddy statement from an individual who served with the Veteran and noted that while with the Veteran he remembered hearing a firefight as they traveled in a "mic" boat down the river and through the night. This individual also stated that they were later transported to Da Nang located between "Dog patel" and the airbase where they encountered many 120 mortar attacks. He also remembered in late August 1967 an attempted overrun of their base that was failed. The Veteran also submitted a statement from his ex-wife who stated she was married to the Veteran after his release from service. They had numerous problems due to his depressed state and erratic behavior, to include constant panic attacks about their children, his suspiciousness toward her, and his inability to get along with people. These were just a few of the examples that led to their divorce. During the lengthy appeal period and the April 2012 Board hearing, the Veteran has consistently reported being subject to mortar attacks in areas surrounding the Da Nang air strip. He has also consistent reported that one of his first jobs in supply was to salvage tarps from the battle field that were burnt and bloodied and that the smell still resonates within his senses. The Veteran has also reported being subject to an attack where his compound area was threatened to be overrun by the enemy in 1967. The Veteran was afforded a February 2011 VA examination in which the examiner concluded that the Veteran was in a combat zone and was exposed to the threat of death or harm to the physical integrity of himself and others stationed around him. The examiner found that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The diagnosis was mood disorder, not otherwise specified. The examiner commented that the Veteran has some symptoms of depression, but there has been no causal nexus established with the military for the onset of depression in 2004. In this case, the Board finds that the February 2011 VA examination is inadequate. While the VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD, it was determined that he had a mood disorder and depression, but no opinion as to a relationship to service was provided. Further, in a May 2011 VA medical record, the Veteran's treating psychiatrist stated that when he initially gave the Veteran a diagnosis of PTSD it was based on stressors from six different traumatic events reported by the Veteran. However, this diagnosis was not provided in accordance with 38 C.F.R. § 4.125(a) as required by the regulations governing PTSD. 38 C.F.R. § 3.304(f). In addition, in an October 2011 private PTSD evaluation, O. Reddy, M.D., diagnosed the Veteran with PTSD, severe, chronic and delayed, chronic depression. Dr. Reddy stated that he thought the Veteran was bothered by the past war experiences. However, Dr. Reddy did not provide an opinion regarding a nexus to service. Thus, the Board finds that there is insufficient competent medical evidence on file to make a decision on the claim for service connection on appeal, and must therefore remand to obtain an additional examination and medical nexus opinion regarding the etiology of any diagnosed acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to scheduling an additional VA examination, the evidence of record shows that the Veteran receives continuing mental health treatment through VA. However, the only VA mental health treatment records associated with the claims file are dated from September 2004 to July 2005, July 2006, and July 2007 to May 2008. Accordingly, all outstanding VA mental health treatment records dating from April 2004 to the present should be associated with the record on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). In addition, an October 2011 private medical record suggests that the Veteran still is a patient at the Springfield Vet Center. However, records associated with the claims file from the Springfield Vet Center are only dated through March 2011. Hence, all outstanding records should be obtained and associated with the claims file. Lastly, the Veteran has submitted a signed VA 21-4142 for the authorization and consent to release information to VA for O. Reddy, M.D. for the treatment of PTSD, for the period beginning October 2011 to the present. It does not appear that any attempts were made to obtain Dr. Reddy's treatment records. However, if this form is outdated, a new request for authorization to obtain outstanding treatment records from Dr. Reddy should be requested from the Veteran. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA mental health treatment records from April 2004 to the present, to include those from the Springfield Community Based Outpatient Clinic, Peoria Outpatient Clinic, and Danville VA medical center. 2. Request that the Veteran provide sufficient information, and authorization, to enable VA to obtain any additional evidence, not already of record, which pertains to the claim on appeal. Specifically request that the Veteran provide the VA with authorization to obtain all outstanding mental health records from the Springfield Vet Center and O. Reddy, M.D. 3. Schedule the Veteran for an examination, by a VA psychiatrist or psychologist, to determine the nature and etiology of any diagnosed acquired psychiatric disability. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. The psychiatric examiner should take a complete history from the Veteran and review the entire claims file, and render an opinion as to (1) the appropriate diagnoses for the Veteran's psychiatric disorders, (2) whether any of the Veteran's claimed stressors (that are consistent with the places, types, and circumstances of the Veteran's service) are adequate to support a DSM-IV diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressors, and (3) for diagnoses other than PTSD, whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder began during active service or are etiologically related to the Veteran's period of active duty. In providing this opinion, the examiner should consider and discuss the conflicting medical evidence of record, to include, but not limited to the evidence noted above. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 4. Then, readjudicate the claim. If the decision 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. 2012). _________________________________________________ FRANK J. FLOWERS 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).