Citation Nr: 1306038 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-08 026 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to February 1972, from July 1973 to January 1977 and from November 1979 to October 1980. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2007 rating decision in which the RO, inter alia, denied service connection for PTSD. In February 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2008. In November 2007, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge in Washington, DC. A May 2009 letter informed the Veteran that his hearing was scheduled in July 2009. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request has been deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, while the Veteran previously was represented by the North Carolina Division of Veterans Affairs (NCDVA), in April 2009, before certification of the appeal to the Board, the NCDVA revoked its power of attorney by way of a letter sent to VA and the Veteran. As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se in this appeal. In August 2009, the Board remanded the claim for service connection for PTSD to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in a November 2010 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In a March 2011 decision, the Board denied the claim for service connection for PTSD. The appellant, in turn, appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By Memorandum Decision dated in July 2012, the Court vacated the Board's decision, and remanded this issue to the Board for further proceedings consistent with its decision. In the July 2012 decision, the Court determined that the Board did not provide adequate reasons and bases as to why the revised regulations 38 C.F.R. § 3.304(f) did not apply and failed to discuss the Veteran's stressors in light of this regulation. In January 2013, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). At this point, the Board notes the decision of the Court in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court found that the Board erred in not considering the scope of the claimant's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record (in that case, diagnoses of anxiety disorder and schizoid disorder). In this case, the Veteran has had diagnoses of a psychiatric disorder other than PTSD, specifically major depressive disorder. Thus, consistent with Clemons and the current record, the Board has recharacterized the matter on appeal as set forth on the title page. For the reasons expressed below, the expanded claim on appeal is being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim REMAND In light of the July 2012 Court decision, and the Board's review of the claims file, further RO action on the claim on appeal is warranted. Initially, as noted in the introduction, given the diagnoses of major depression of record, the Board has expanded the claim on appeal to include the matter of service connection for psychiatric disability other than PTSD, consistent with Clemons, supra. However, as the RO has only adjudicated the matter of service connection for PTSD, a remand for RO consideration of the expanded claim, in the first instance, is needed to avoid any prejudice to the Veteran. The Board also finds that further development of the expanded claim is warranted. As regards PTSD, it is noted that service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A recent amendment to the PTSD regulation provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3) (2012); 75 Fed. Reg. 39843 - 39852 (July 13, 2010). Thus, the primary effect of the amendment of § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor related to the Veteran's "fear of hostile military or terrorist activity." In such instances, in lieu of verifying any reported, in-service stressor(s), a medical opinion concerning the adequacy of the stressor(s), and the relationship between the stressor(s) and a veteran's symptoms, is obtained from a VA, or VA contracted, psychiatrist or psychologist. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). As noted, in the July 2012 Decision, the Court determined that the Board did not adequately address why the revised version of 38 C.F.R. § 3.304(f) did not apply and failed to discuss the Veteran's claimed stressors in light of this regulation. In this case, the Veteran has been diagnosed with service-related PTSD, as reflected, for example, in an August 2005 VA PTSD clinical team consultation report showing a diagnosis of PTSD, chronic, with impact on social and vocational function. However, the Veteran's Form DD 214 indicates that he was a Hawk missile launcher mechanic and a helicopter repairman. The record does not indicate that the Veteran was involved in combat, and the Veteran received no medals indicative of combat service. The Veteran's alleged stressors included that he witnessed a helicopter crash on the flight line and saw a soldier trapped in the burning helicopter shoot himself. Second, the Veteran has asserted that while working near the demilitarized zone in Korea, he viewed an officer being killed with a machete on a Ready Room monitor. Nevertheless, while service personnel records documented service in both Vietnam and Korea, the RO as well as the Board in the prior March 2011 decision, have previously determined that these in-service stressors had not been corroborated. Nevertheless, during the course of receiving treatment, the Veteran has also vaguely reported participating in and witnessing combat activity while serving in Vietnam including seeing several people die. As indicated above, the RO has been unable to verify the occurrence of any actual, claimed in-service events; hence, the diagnoses of PTSD based on the occurrence of such events are inadequate to resolve the claim. However, as noted above, the Veteran has asserted fear associated with such events, and with service in Vietnam, he served in a location involving exposure to hostile military activity. Although the Veteran's VA treating physicians have generally indicated that the Veteran's PTSD is related to combat activities, there is no medical evidence or opinion addressing whether fear associated with exposure to hostile military activities has resulted in the Veteran's PTSD. Moreover, given the expanded claim on appeal, an opinion as to whether any diagnosed psychiatric disability other than PTSD is medically-related to service-to include any such fear-would helpful in resolving this aspect of the appeal, as well. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the Veteran to undergo a VA examination, by a psychiatrist or psychologist at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim (as the original claim will be considered on the basis of the evidence of record. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, in additional statements submitted in January 2013, the Veteran indicated that he received ongoing treatment for PTSD at the VA Medical Center (VAMC) in Hampton, Virginia. However, the most recent VA treatment records associated with the paper claims file are dated in June 2011, and the Veteran's paperless, electronic (Virtual VA) file does not include any additional VA treatment records. Thus, there appears to be relevant VA treatment records outstanding. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain from the Hampton VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated since June 2011, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the expanded claim on appeal. The RO should specifically request further information concerning the Veteran's asserted combat related activities in Vietnam. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request further information concerning the Veteran's asserted combat-related activities in Vietnam. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). 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 expanded claim on appeal. Adjudication of the claim should include consideration of all evidence associated with the paper and electronic claims files since the RO's last adjudication of the claim for service connection for PTSD. Accordingly, this matter is hereby REMANDED for the following actions: 1. The RO should obtain from the Hampton VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, since June 2011. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the expanded claim on appeal that is not currently of record. The RO should specifically request further information concerning the Veteran's asserted combat-related activities in Vietnam. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide this claim within the one-year period). 3. If the Veteran responds, the RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received have been associated with the claims file, the RO should arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at an appropriate VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies (to include psychological testing) should be accomplished (with all findings made available to the psychiatrist or psychologist prior to the completion of his/her report), and all clinical findings should be reported in detail. The examiner should clearly indicate whether the Veteran meets the diagnostic criteria for PTSD. If so, the examiner should render an opinion, based on examination of the Veteran, any testing results, and review of the record-to include any statements or other documents referencing the Veteran's fear associated with hostile military activity-as to whether such fear is sufficient to have resulted in current PTSD, and, if so, whether the Veteran's PTSD symptoms are related to such stressor. Also, if any current psychiatric disability/ies other than PTSD is/are diagnosed , with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service-to include fear associated with hostile military or terrorist activities. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the expanded claim for service connection for an acquired psychiatric disorder, to , to include PTSD and major depression, in light of all pertinent evidence (to particularly included all that added to the paper and electronic claims files since the RO's last adjudication of the claim for service connection for PTSD) and legal authority. 8. If the benefit sought on appeal is denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).