Citation Nr: 1305092 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-39 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from March 1969 to October 1971, and from June 1972 to July 1978, to include a tour of duty in Vietnam from July 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Boise, Idaho, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for depression and anxiety attacks. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the issue has been recharacterized to better reflect the evidence of record and the Veteran's contentions. The Board recognizes that the Veteran had previously filed a formal claim of service connection for PTSD, and withdrew such in March 2009, but his allegations in connection with the ongoing depression claim have served to resurrect that claim as part and parcel of the current appeal. The Veteran and his wife testified at a May 2012 hearing held at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. At that time, the record was held open for 30 days to allow the Veteran to submit additional medical evidence; however, no additional submissions have been received, nor have new records been associated with the electronic Virtual VA system. The issue of entitlement to service connection for residuals on a laceration and surgery of the throat to remove glass fragments has been raised by the record; the Veteran has repeatedly described this incident as a stressor event. However, the claim 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 Remand is required for full compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran informed VA in September 2010 that service treatment records (STRs) from his first period of service, from March 1969 to October 1971, were missing, and requested that VA make further attempts to obtain such. In response, the RO filed a new request for additional STRs with the proper custodian, the National Personnel Records Center (NPRC). NPRC certified in October 2010 that it possessed no STRs beyond those forwarded to VA previously. The duty to assist requires VA to make as many requests are as necessary to obtain records in the possession of a Federal agency, until it can be certified "that the records sought do not exist or that further efforts to obtain those records would be futile." 38 C.F.R. § 3.159(c)(2). Such certification has been made here. Under such circumstances, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As part of this heightened duty, VA has set forth procedures to notify the Veteran on the unavailability of the records and to afford him an opportunity to submit any relevant records in his possession, to include alternative evidence. VA Adjudication Procedures Manual M21-1MR, III.iii.2.I.59. No pre-adjudicatory notice was afforded the Veteran here, nor was he allowed the requisite 10 day period to submit additional relevant evidence. Remand is required for such, as well as to inform the Veteran of what types of alternative evidence might be helpful to his claim and substitute for the missing STRs. Similarly, complete service personnel records (SPRs) should be requested; partial records are associated with the file, but it is possible that the complete file may include information regarding the Veteran's first period of service, including information regarding combat participation. It is also necessary to obtain updated VA treatment records. Treating doctors have noted waxing and waning of symptoms over time, and it is treating doctors who most strongly endorse the possibility of a PTSD diagnosis, based on in-service stressors. Records from March 2011 to the present are needed. Finally, a new VA examination is required to obtain an adequate medical opinion regarding a possible nexus between currently diagnosed psychiatric disorders and service, to include established stressors. VA has previously found that the Veteran's allegations of fear of hostile enemy action in Vietnam, based on receiving incoming mortar fire and seeing the results of attacks, constitute valid stressors, and are consistent with the Veteran's service. 38 C.F.R. § 3.304(f)(3). The April 2011 examiner failed to discuss whether these events caused or aggravated the Veteran's current psychiatric condition; he discussed them only in the context of a PTSD diagnosis. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Moreover, in providing a rationale for his opinion, the examiner stressed the absence of any contemporaneous notations of depression or other psychiatric problems in service. As there are missing STRs, and the possibility, based on the Veteran's reports and potentially relevant SPRs, that he could qualify as a combat Veteran, this basis is suspect. Only after all necessary development is accomplished with regard to STRs, SPRs, and alternative records can such a statement be accurately made. Such development may also impact the weight to be afforded the Veteran's lay statements; if combat is established, the Veteran's statements alone can be sufficient evidence of in-service incurrence. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Make appropriate requests of NPRC for the Veteran's complete service personnel records, for all periods of service. 2. After completing the above, contact the Veteran and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents regarding the unavailability of service records (treatment and, if applicable, personnel). Notice must include information on alternative evidence, consistent with M21-1MR III.iii.2.E.27.b. 3. Associate with the claims file complete VA treatment records from the medical center in Salt Lake City, Utah, and all associated clinics, in particular the Pocatello CBOC, as well as any other VA facility identified by Veteran or in the record, for the period of March 2011 to the present. 4. After completion of the above directives, schedule the Veteran for a VA mental disorders/initial PTSD examination. The entire claims file (to include pertinent records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. The examiner must be notified of the stressor events which are considered verified, as well as any RO determination regarding the Veteran's combat status. The examiner must identify all currently diagnosed acquired psychiatric disorders, and must opine as to whether it is at least as likely as not any such is caused or aggravated by service, to include the verified stressors. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to provide the reasons behind any opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).