Citation Nr: 1304587 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-41 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1999 and May 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In December 2012, the Veteran and his son testified at a Central Office hearing before the Undersigned. A copy of the hearing transcript is of record. Under 38 C.F.R. § 3.156(c)(1) (2012), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease..." The Board finds that service personnel records associated with the Veteran's claims folder in July 2006 are clearly relevant and of probative value to the Veteran's claim for an acquired psychiatric disorder, to include PTSD, as they show that the military base where he was stationed in Vietnam, Dong Tam, came under frequent mortar attack from the Vietcong. Notably, the Veteran's claim was previously denied in May 1999 based on the absence of evidence that his PTSD with memory loss, grief reaction and depression had onset during service or were related to an in-service event or injury. In light of the foregoing, the Board will reconsider the claim and characterize the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD pursuant to 38 C.F.R. § 3.156(c). Although the claim has been characterized as entitlement to service connection for PTSD with loss of memory, grief reaction, and depression, the Veteran has also been diagnosed with anxiety and a cognitive disorder. To adequately reflect the claim, the issue has been amended accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of the Veteran's Virtual VA electronic claims file is negative for any additional information or evidence pertinent to the claim on appeal. 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 As previously stated, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD include claims for service connection for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). During the December 2012 hearing, the Veteran, who the record indicates may have Alzheimer's Disease, and his son asserted that the Veteran has an acquired psychiatric disorder, to include PTSD, due to his military service. The Veteran's son testified that while the Veteran did not speak with the family of his experiences during his Vietnam service, he did mention that he experienced frequent mortar attacks. Ever since his son could remember, the Veteran has been easily startled and has had difficulty sleeping. They indicated that the Veteran has experienced difficulty with traumatic memories associated with his Vietnam service ever since. Although post-service treatment records currently associated with the claims file relate an October 1994 diagnosis of PTSD to the Veteran being held hostage while working for the United States Postal Service at that time, the Veteran and his son asserted that an acquired psychiatric disorder, to include PTSD, has existed since military service and was not caused but aggravated by the 1994 post-service event at the United States Postal Service. The Veteran and his son suggested that the Veteran may have received psychiatric treatment related to his military service prior to the 1994 post-service stressor event while working at the postal office, however, they were unable to recall the dates and locations of such treatment. Service personnel records recently associated with the claims file, to include a Navy Unit Commendation Citation dated in April 1970, show that the Veteran was stationed in Dong Tam, Vietnam, where he was engaged in riverine assault operations against the Vietcong from at least February 1968 to January 28, 1969. During that time, he served as the supervisor of the staff personnel office where he prepared personnel casualty reports, dispatched teams to various in-country locations, and ensured that sandbags were filled and strategically placed and protective bunkers were constructed to shelter detachment personnel from frequent Vietcong mortar attacks. During the pendency of this appeal, effective July 13, 2010, 38 C.F.R. 3.304(f), was amended as follows: "If a stressor claimed by a veteran is related to that 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 that veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." See 75 Fed. Reg. 39843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). The Veteran's service treatment records show that in July 1973, he described himself as nervous. He reportedly was uptight over traffic, problems at work, and problems with his teenage son. In November 1974, it was noted that he reportedly had developed better control of himself in situations where he used to get angry. Post-service treatment records currently associated with the claims folder show that since 1995, the Veteran has been diagnosed with anxiety, depression, grief reaction, memory loss/cognitive disorder, and PTSD associated with being held hostage while working at the United States Postal Office in October 1994. The Veteran's memory loss/cognitive disorder has been associated with, among other things, his PTSD, anxiety, depression, and vascular conditions. In this regard, the Board notes that the Veteran is service-connected for coronary artery disease, diabetes mellitus, hypertension, and interstitial lung disease. The Board observes that the Veteran has not been provided notice pursuant to the VCAA of the evidence necessary to establish service connection on a secondary basis. Such notice should be provided. The Veteran has not been afforded a VA examination to determine the nature and etiology of an acquired psychiatric disability, to include PTSD. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Additionally, in light of the Veteran and his son's testimony that the Veteran may have received treatment for an acquired psychiatric disorder, to include PTSD, prior to the October 1994 post-service incident while employed at the United States Postal Service, post-service medical and psychiatric treatment records should be requested from both VA and military health care facilities dating since the Veteran's discharge from service. Finally, the Veteran's employment medical and personnel records pertaining to his employment at the United States Postal Service should be obtained from the U.S. Office of Personnel Management Retirement Operations Center in accordance with NPRC correspondence dated in August 2010. (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.) Accordingly, the case is REMANDED for the following action: 1. Issue corrective VCAA notice which complies with the notification requirements of the VCAA, to include the evidentiary requirements as to establishing service connection for an acquired psychiatric disorder on a secondary basis. The Veteran should be afforded an appropriate period in which to respond. 2. Request any post-service psychiatric and medical treatment records, to include any records that have been archived or retired, from: Bethesda National Naval Medical Center dating from 1977 to January 2005 and since October 2010; Malcolm Grow Medical Center at Andrews Air Force Base dating since 1977, and; Walter Reed Army Medical Center dating from 1977 to 2005 and since August 2005. Request any VA psychiatric and medical treatment records, to include any records that have been archived or retired, from the Washington, D.C. VAMC dating from January 1977 to June 2009 and since January 2011 as well as any treatment records from the Silver Spring Vet Center. Request the Veteran's medical and personnel records pertaining to his employment at the United States Postal Service from the U.S. Office of Personnel Management Retirement Operations Center as directed NPRC correspondence dated in August 2010. Appropriate efforts must be made to obtain all available Federal records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 3. Thereafter, the Veteran should be afforded a VA examination with a psychologist or psychiatrist to determine the nature and etiology of any current psychiatric disorder, to include PTSD, depression, anxiety, and memory loss. The Veteran's claims folder, to include any records in Virtual VA, must be made available to the examiner prior to the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should state each acquired psychiatric disorder diagnosed or manifested at any time since September 1998. For each acquired psychiatric disorder identified, to include PTSD, the examiner should indicate whether it is at least as likely as not (a 50 percent probability or greater) that such disorder is related to his corroborated stressor of sustaining mortar attacks while stationed in Dong Tam, Vietnam, or other reported military stressor(s) deemed credible. Specifically, the examiner should determine whether the Veteran's corroborated or credible military stressor(s) are adequate to support a diagnosis of PTSD and whether his current symptoms are related to those stressors or other stressors such as the post-service stressor as described by the Veteran during the December 2012 hearing. As to any acquired psychiatric disorder diagnosed that is found to be unrelated to military service, the examiner should opine whether such is at least as likely as not (a 50 percent probability or greater) proximately due to or aggravated (permanently worsened beyond normal progression) by any psychiatric disorder found to be related to military service or by service-connected hypertension, diabetes, and/or coronary artery disease. If aggravation is shown, the examiner should specify what permanent, measurable increase in the severity of the psychiatric disorder is attributable to service-connected vascular and/or psychiatric disability, if any, that is found to be related to military service. The examiner should acknowledge and discuss the significance, if any, of the of the April 2007 brain MRI, the April 2007 PET scan, January 2007 and December 2009 treatment records that suggests a link between memory loss and a significant history of hypertension and vascular disease, and August 2009 and July 2010 treatment records that suggest a link between underlying anxiety and depression and memory loss. Any opinion expressed must be accompanied by a complete rationale. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why causation and/or aggravation of any acquired psychiatric disorder, to include PTSD, is unknowable. 4. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After the development requested above has been completed, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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).