Citation Nr: 1303282 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-47 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include depression, dysthymic disorder and post traumatic stress disorder (PTSD). 2. Entitlement to service connection for a sleep disorder claimed as sleep apnea. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to June 1958. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied service connection for sleep apnea and depression. The Board has recharacterized the sleep apnea issue to be that of a sleep disorder to include sleep apnea, based on evidence and the wording of the initial claim which included nightmares in the claim for sleep apnea. In consideration of Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a service connection for a mental health disability claim encompasses all psychiatric disability shown/alleged) the issue of service connection for a psychiatric disability has been characterized to encompass all psychiatric diagnoses shown in the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In the original application for compensation VA Form 21-526 submitted in May 2009 the Veteran has claimed entitlement to service connection for a psychiatric disorder which he characterized as depression. Additionally he claimed entitlement to service connection for sleep apnea but included among this issue "nightmares" which was in parentheses. The medical evidence submitted in support of the claim is noted to have included diagnoses of dysthymic disorder, rule out PTSD. The psychiatric disorder is claimed to have been caused by a traumatic incident in the service, either involving the Veteran or other naval personnel having fallen overboard during a storm or hurricane. Thus the Board has included PTSD and dysthymic disorder in this claim for service connection for a psychiatric disorder pursuant to Clemons, supra. Currently the RO has denied service connection for a psychiatric disorder that it classified as a depressive disorder on the basis that the claimed stressor, said by the RO to have been the Veteran himself falling overboard and nearly drowning, having not been verified by official sources. The Board notes that the Veteran has not actually provided a written statement, nor has he testified that the traumatic experience was of him falling overboard. The only sources of such a stressor are from the Veteran's representative in a May 2009 written statement, and from the VA's internal e-mails and report of general information dated in December 2010 and October 2011 respectively. An alternate traumatic history is documented in a February 2009 VA psychiatric treatment note, which described the trauma as his shipmates having been swept overboard during a hurricane. The Veteran has not clearly articulated the stressor in any of his written communications other than to indicate that the hurricane he was in was probably Diane rather than Carol. While the May 2009 VCAA notice addressed the VA's duty to notify and assist in regards to the psychiatric disorder classified solely as depression, further notice is indicated in regards to the psychiatric disability to encompass possible PTSD. The Board must ensure adequate VCAA notice. Further, in regards to both the psychiatric disorders claim and the sleep disorder claim (to include sleep apnea), it appears additional VA records are outstanding, which may pertain to these claims. Of note, a February 2009 VA primary record describes the Veteran as having been lost to follow-up, with his last visit at this facility on April 9, 2007. The Veteran has indicated that all his treatment has been with the Providence Rhode Island and that he has had no private treatment. The Board concludes a request for VA records must be made since it is not clear whether the evidence is currently complete. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) for the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD and dysthymic disorder. The VCAA notice should inform the Veteran of what the evidence must show to establish entitlement to service connection for the psychiatric disorder, describe the types of evidence that the Veteran should submit in support of his claim, explain what evidence VA would obtain and make reasonable efforts to obtain on his behalf in support of the claim, and describe the elements of degree of disability and effective date. The Veteran t should be afforded the appropriate period of time for response to all written notice and development as required by VA law. The RO must request from the Veteran a comprehensive statement containing as much detail as possible regarding the stressor(s) to which he alleges he was exposed in service. The Veteran must be asked to provide specific details of the claimed stressful events he experienced during service, such as dates, places, detailed descriptions of events, and any other identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment, or any other identifying detail. The RO must ask the Veteran to comment specifically on the approximate date of which each incident occurred that he describes. The Veteran must be advised that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he must be asked to be as specific as possible because without such details, an adequate search for verifying information cannot be conducted. He must also be advised to submit any verifying information that he can regarding the stressors he claims to have experienced in service, such as statements of fellow service members. 2. Obtain the Veteran's medical records from the VA Medical Center in Providence Rhode Island for treatment for a psychiatric disorder and/or a sleep disorder from immediately after service to the present. Continue to request the VA records, either until the records are obtained or it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. If additional evidence is obtained that is not sufficiently corroborated by the official action thus far undertaken, but provides new information upon which another attempt to obtain verification through official sources is shown warranted, the RO must review the Veteran's claims file and prepare a summary of all claimed stressors, to include those obtained via the above actions. The RO must send this summary and the information of record regarding the Veteran's service, including copies of any records relevant to the claim, to the JSRRC, and must ask JSRRC to provide any available information that might corroborate the Veteran's alleged in-service stressor(s). If JSRRC is unable to provide the specific information requested, they must be asked to direct the RO to any additional appropriate sources. All documentation received by the RO from JSRRC must be associated with the claims file. The RO must ask JSRRC to discuss in its response what the records show with regard to the stressors identified by the Veteran. 4. If the Veteran's reported stressors are corroborated, schedule the Veteran for a VA psychiatric examination to determine the nature and extent of any current psychiatric disabilities, and to obtain a medical opinion as to whether any such disorders are possibly related to service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. The examiner should only consider stressors that have been verified. The examination report should include a detailed account of all psychiatric pathology found to be present. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should clearly identify all psychiatric disorders found. With respect to each diagnosed psychiatric disability (other than personality disorders), the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the current psychiatric disability arose during service or is otherwise related to any incident of service. If the examiner diagnoses the Veteran with PTSD, then the examiner should identify the stressors upon which the diagnosis is based. A complete rationale for all opinions expressed should be provided. 5. Thereafter, the AOJ should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received and all applicable regulations. An appropriate period of time should be allowed for response. 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). _________________________________________________ THOMAS J. DANNAHER 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).