Citation Nr: 1305345 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 09-50 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION The Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active duty service from December 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In February 2012, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). 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 April 2012, the Board remanded the case to the RO for additional development in the form of additional notice for a PTSD claim based on personal assault. VA provided a notice in April 2012, however, this notice did not contain the information requested in the remand and did not fully address what was needed to corroborate a stressor based on personal assault. As the requested development has not been completed, the claim must again be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted, the Veteran has claimed service connection for PTSD. As the record also contains diagnoses of psychiatric disorders other than PTSD, such as depressive disorder NOS, the Board has restyled the claim as shown on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). Although the service treatment records do not contain any treatment for a mental health disorder, the Veteran has stated in his claim that he was treated at the United States Army Hospital at Fort Bliss, Texas, although he also has indicated he never reported the assault that he asserts lead to his PTSD and only told a few friends. There has not been any attempt to obtain the psychiatric service or any in-patient records and they may help establish his claim for service connection for a psychiatric disorder. Accordingly, the RO should attempt to locate documentation relating to psychiatric records and in-patient records from Fort Bliss. In his treatment with VAMC health care providers, the Veteran has also identified hospitalization at a private hospital identified as "UMC." The Veteran should be asked to help identify the hospitalization and a request for the records should be made. As noted above, the RO sent the Veteran notice in April 2012 regarding PTSD due to a personal assault. To date, the Veteran has not responded to the April 2012 notice. Given the above regarding further development, the Board finds that while the appeal is in remand status the Veteran should also be given a second opportunity to provide VA with information regarding his assault stressor. Finally, as noted, the Veteran has been diagnosed by his mental health providers at VAMC in December 2007 with depressive disorder NOS. In a general medical VA examination in September 2008, the diagnosis was anxiety tension disorder NOS. In a VA mental health examination in September 2008, the diagnosis was alcohol and substance induced mood disorder. The examiner explained his rationale as to PTSD, but did not explain why he did not agree with the earlier diagnosis of depressive disorder NOS. In a mental health evaluation occurring in November 2008, the diagnosis was history of polysubstance abuse and to rule out depressive disorder NOS. The Board has therefore determined the Veteran should be provided another VA examination to clarify whether the Veteran has a depressive disability, and to determine if the Veteran has some other acquired psychiatric disability that is related to service, including, anxiety tension disorder NOS and PTSD, if evidence as to stressors are developed. Accordingly, the case is REMANDED for the following action: 1. Undertake those actions necessary to comply with the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), including notice to the Veteran of what information and evidence are still needed to substantiate his claims for service connection for a psychiatric disorder to include PTSD and a psychiatric disorder other than PTSD. Specific notice must be provided with respect to personal assault PTSD cases and stressor verification. Under 38 C.F.R. § 3.304(f)(5) the RO should advise the Veteran of potential secondary sources tending to substantiate his claim of personal assault. Examples of such evidence include, but are not limited to: Records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually-transmitted diseases; and roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: A request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Veteran should be asked to submit evidence from any secondary sources, and if he requests assistance in obtaining same, all assistance due him should then be provided by the RO. 2. Request from the base hospital and dispensary at Fort Bliss, Texas; the National Personnel Records Center; and any other appropriate source to include the National Archives and Records Administration; and the applicable service department all psychiatry/mental health records or in- patient records of the Veteran while he was stationed at Fort Bliss. All efforts must be documented and associated with the file. Any negative replies must be in writing and the Veteran notified in accordance with 38 C.F.R. § 3.159. 3. Ask the Veteran either to submit or to provide the full and correct name and contact information and authorize VA to obtain the records of UMC for the hospitalization occurring in approximately 2004. The RO/AMC should attempt to obtain these records once authorization is obtained. All efforts to obtain these records must be documented in the file. Any negative replies must be in writing and the Veteran notified in accordance with 38 C.F.R. § 3.159. 4. Obtain all VAMC records from Central California HCS VAMC, and associated outpatient clinics, from November 2008 to the present. All efforts must be documented and associated with the file. Any negative replies must be in writing. 5. After the foregoing record development is completed, afford the Veteran a VA psychiatric examination to ascertain the nature and etiology of any current psychiatric disability, to specifically include a depression disorder such as depressive disorder NOS and PTSD. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine: Whether it is at least as likely as not (50 percent probability), the Veteran has any current psychiatric disability, including PTSD, a depressive disorder, or an anxiety tension disorder. In making this determination, the examiner should determine that any current diagnosis of the Veteran is based on the applicable DSM-IV criteria. In determining whether there are any current psychiatric diagnoses, the examiner should not only state whether those diagnoses also meet the DSM-IV criteria for the particular diagnosis but also should address other psychiatric diagnoses noted in VA treatment records and reconcile such diagnoses with the examination results. For any diagnosis made by the examiner, the examiner is then asked to determine: a). Whether it is at least as likely as not (50 percent probability) that any psychiatric disability diagnosed had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. b). If, and only if, the Veteran's stressors have been verified and the Veteran has been diagnosed with PTSD, the examiner should determine whether is it at least as likely as not (50 percent probability) that PTSD is related to reported in-service stressors. 6. After the development requested has been completed, adjudicate the claim of service connection for an acquired psychiatric disorder. If the benefit sought is denied, furnished the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).