Citation Nr: 1305708 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 10-41 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of traumatic brain injury (TBI). ATTORNEY FOR THE BOARD R. Dodd Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to April 2004. This case comes before the Board of Veterans' Appeals (the Board) on appeal from September 2007 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina that denied service connection for PTSD and TBI. The Board notes that it has recharacterized the issue regarding a psychiatric disorder to include both posttraumatic stress disorder (PTSD) and non-PTSD psychiatric disabilities. The RO only adjudicated the issue of PTSD without consideration of any other non-PTSD psychiatric disabilities. However, the scope of a psychiatric disability claim includes any disability that may reasonably be encompassed by the claimant's description of that claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran initially filed a claim for PTSD and his VA outpatient treatment records show treatment for dysthymia, depression, anxiety, and an adjustment disorder in addition to PTSD. Thus, the Board finds that the issue on appeal includes all diagnosed psychiatric disabilities. Therefore, the issue on appeal has been recharacterized to reflect a broad interpretation of the Veteran's claim for service connection. A review of the Virtual VA paperless claims processing system revealed no further records pertinent to the present appeal. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to provide the Veteran with a VA psychiatric examination and a VA TBI examination. Remand is required to afford the Veteran appropriate VA examinations for his claimed PTSD and TBI in order to determine their relationship to his military service. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence 'indicates' that there 'may' be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where a physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d) (2012). PTSD Service connection for posttraumatic stress disorder (PTSD) requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2012). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2012). Recent regulatory amendments changed the evidentiary standards regarding stressors based on a Veteran's fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f) (3)), corrected by 75 Fed. Reg. 41 ,092 (July 15, 2010). These amendments are applicable to the Veteran's appeal. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). In the instant case, the Veteran filed a claim for service connection for PTSD as a result of military service in Afghanistan. His DD 214 showed that he served in support of Operation Enduring Freedom in Afghanistan from September 2002 to March 2003. The Veteran's MOS was a computer automation system repairman and there were no indications of involvement in combat. In June 2008, the Veteran submitted stressor statements, detailing incidents in which he witnessed the aftermath of children who had been raped, men having sexual intercourse with goats and sheep, and the killing of Taliban combatants. Of note, none of these events were able to be verified by the RO, despite attempts. The Veteran stated that these incidents have caused him nightmares and that he tries to avoid any stimuli that may evoke the incidents in his mind. He stated that this is difficult on account of the fact that he has children. The Veteran also stated that he does not speak to anyone with whom he was deployed as an attempt to prevent bringing up the traumatizing incidents. The Veteran's STRs do not reveal any indication of treatment for any psychiatric disorder. The Veteran's VA outpatient treatment records show that he has sought treatment for a psychiatric disorder and been diagnosed with a number of disorders, including dysthymia, adjustment disorder, anxiety disorder not otherwise specified (NOS), depression NOS, and PTSD. The only diagnosis that has been related to the Veteran's military service is PTSD. In that regard, a December 2004 treatment note reflected a positive screening for PTSD, but attributed it to a sexual assault incident at age sixteen. However, an October 2007 treatment note reflected a positive screening for PTSD related to military service. In May 2008, VA treatment notes show that the Veteran was diagnosed with PTSD and treated for such. In September 2008, the Veteran's diagnosis was changed from PTSD to anxiety NOS and depression NOS, without a discussion of etiology. In November 2008, the Veteran's diagnosis was again changed to PTSD and related to military service. Although it was noted in an August 2008 treatment note that the Veteran's subjective histories have varied regarding his stressors, since his June 2008 stressor statement, the Veteran has consistently related his current symptoms to stressors experienced in Afghanistan, particularly referring to witnessing child rape victims. Further, the Veteran has related that these stressors gave him continuing nightmares and avoidance behaviors. These symptoms and complaints may indicate that the Veteran felt a since of fear, horror, hopelessness, or helplessness in response to the alleged incidents in service. To present, the Veteran has not been given a VA PTSD examination in order to adequately determine the etiology of his condition. Based on the foregoing, the Board finds that a remand is necessary in order to determine if the Veteran has PTSD related to a stressor based on the Veteran's fear of hostile military or terrorist activity that is consistent with the places, types and circumstances of his service as a computer automation system repairman. Furthermore, because the Veteran's reported symptoms may encompass diagnoses other than PTSD, the requested examination must take this into consideration in any discussion of etiology. TBI The Veteran claims that he sustained head injuries while serving in Afghanistan. In particular, in a January 2008 TBI screening, the Veteran claimed that on multiple occasions he would hit his head on the doorway of a shelter in which he worked. He stated that he never lost consciousness, but felt dizzy. The Veteran also recalled experiencing a blast that was strong enough to shake the building. He again stated that he felt dizzy, and that it took a while for him to realize what had happened. A review of the Veteran's service treatment records was negative for treatment of any head trauma or incidents that the Veteran described. A 2000 motor vehicle accident was noted, but it did not detail any injuries related to the Veteran's head. A review of the Veteran's VA outpatient treatment records reveals that the Veteran was found to have a positive TBI screening in January 2008. The Veteran's subjective history of head trauma in service was noted as well as complaints of cognitive defects. In September 2008, the Veteran was given a neuropsychological assessment in which the examiner found that there were moderate impairments in several areas of cognitive functioning. The examiner noted that testing six months prior had identified deficits in processing speed, recall of a list of words following a delay, and mild problems with concentration, all despite evidence of a bright-average premorbid intellect. Upon testing in September 2008, the examiner noted that the Veteran showed some improvement in ability to retrieve information, but testing on acquisition skills revealed the Veteran to be significantly worse. It was noted that problems with acquisition skills are atypical of someone suffering from TBI. The examiner diagnosed the Veteran with cognitive disorder NOS. Although, the examiner did not completely rule out TBI, he stated that it would be difficult to reconcile a diagnosis with the facts that there was much discrepancy in the Veteran's VA medical records, such as the Veteran's failure to mention the 2000 motor vehicle accident, and that he would need to see the entire military medical history. Further, the examiner noted that difficulties in a diagnosis also resulted from the fact that the experiences identified by the Veteran as a precursor to TBI were relatively minor and would not typically result in TBI, that the contributions of the Veteran's alcohol consumption may be a factor, and the fact that the Veteran's symptoms could still be indicative of TBI, despite the atypical symptoms. A July 2009 treatment note shows that the Veteran's cognitive symptoms had continued to be treated and were later diagnosed as mild TBI. Etiology was not established in the later diagnosis. The Board finds that the Veteran has provided competent and credible testimony regarding his experiences of hitting his head while serving in Afghanistan. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran is competent to testify about his daily experiences serving in Afghanistan because they are within the realm of his personal knowledge. Further, the Board finds that the Veteran is credible, as his statements are consistent with the types of activities in which he would have engaged in Iraq and he has consistently reported such incidences to medical providers since his initial TBI screening in 2008. The Board finds that, while there is not a definitive consensus on the presence of TBI specifically, the claims file does contain evidence of the Veteran's treatment for symptoms of a cognitive disorder that are subjectively related to head injuries claimed in service. Further, the Board notes that the Veteran's competent and credible lay testimony regarding his head injuries in Afghanistan establishes an in-service occurrence. As such, the issue turns upon a finding of nexus. Because the current medical evidence of record does not adequately address this issue, as VA medical findings were inconclusive or based solely upon subjective findings without further inquiry, a VA examination should be obtained in order to explore the possible relationship of the Veteran's current cognitive condition, to include TBI, to his military service. As this case must be remanded for the foregoing reasons, any recent VA treatment records should also be obtained. The Board observes that the Veteran has received VA treatment for PTSD and TBI and records of his VA care, dated since February 2010, have not been associated with the claims file. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, provide the Veteran a VA psychiatric examination to determine the nature and etiology of all diagnosed psychiatric disorders. Because this examination will be partially conducted under the amended PTSD regulations, it must be conducted by a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be performed. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. A complete rationale for any opinion expressed must be included in the examination report. If an opinion cannot be provided without resort to speculation, the examiner must provide supporting rationale for that statement. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. The examiner is asked to express an opinion as to whether the Veteran meets the DSM-IV criteria for PTSD. If the examiner finds that the Veteran does not meet the criteria, he or she must expressly address the Veteran's current psychiatric complaints and the treatment notes from the Veteran's medical records. The examiner must then determine whether there are any other non-PTSD psychiatric diagnoses. If the Veteran meets the DSM-IV criteria for PTSD the examiner must provide an opinion whether it is at least as likely as not (a 50 percent or greater likelihood) that the PTSD was caused by in-service stressors. If the Veteran meets the DSM-IV criteria for PTSD, then the examiner must provide the following opinions regarding each of the Veteran's claimed stressors: whether the claimed stressors are adequate to support a diagnosis of PTSD; whether the stressors are based on a fear of hostile military or terrorist activity during service; and whether the symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. Regarding the claim for a non-PTSD psychiatric disorder, if a non-PTSD psychiatric diagnosis is provided, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric symptoms and/or any other currently diagnosed psychiatric disability is related to active service. The examiner must also address the Veteran's lay statements and medical records showing treatment since he left service in 2004. 3. The Veteran should also be scheduled with an appropriate in- person examination to determine the etiology and severity of the Veteran's TBI. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's TBI was related to military service. The Veteran's lay statements regarding head trauma sustained in Afghanistan must also be taken into consideration. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. 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 AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ WAYNE M. BRAEUER 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).