Citation Nr: 1306898 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-21 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a variously diagnosed psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1971 to July 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In August 2010, the Board remanded the case to the RO for additional development. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to the matter on appeal. See 38 C.F.R. § 3.159 (2012). In the August 2010 remand, the Board directed the RO to arrange for verification of any stressor events for which there is sufficient identifying information. Following completion of such action, the RO was to arrange for an examination of the Veteran to be examined by a psychiatrist to determine whether he has any psychiatric disability (to include PTSD) that is etiologically related to his active service/events therein. The Board specifically instructed "the RO must advise the examiner of any corroborated stressor events (or if there is no corroborated stressor) and whether or not the Veteran served in an area of hostilities." Acting on the Remand, the RO reversed the sequence of the development process given in the Board's instructions. Specifically, the RO first arranged for a VA examination (in September 2010). The examiner provided a DSM-IV diagnosis of major depressive disorder (MDD), but stated that he could not provide a DSM-IV diagnosis of PTSD, stating that the Veteran's claimed stressor is not related to a fear of hostile military or terrorist activity. The examiner also concluded that the Veteran's MDD was less likely as not caused by, or a result of, his military experiences. Then, the stressor verification process was completed by the September 2011 issuance of a Memorandum which certified that there is credible supporting evidence that the Veteran was aboard the USS Kitty Hawk while it was being attacked and that he witnessed an officer being sucked into a jet engine. [Notably, the Veteran has also since provided additional accounts of stressor events occurring on the Kitty Hawk while he was aboard, accounts that also appear to be verifiable-although further stressor verification does not appear necessary.] Because the verification of stressors after the examination rendered the examination inadequate (as the examining psychologist was unaware of the entire accurate history, including that alleged stressor events were corroborated), it was incumbent on the RO to arrange for a re-examination of the Veteran after the stressor verification was completed [incidentally, repeat examination would not have been necessary if the sequence suggested by the Board was followed]. However, there was no reexamination of the Veteran to encompass consideration of the corroborated stressor events. Consequently, the Veteran has not been afforded an adequate VA examination, and remand for that purpose is necessary. Notably, it is well-established now that when the Board remands a case for specified action, the Veteran is entitled to compliance as a matter of law. This is not discretionary. See Stegall v. West, 11 Vet. Ap. 268 (1998). Additionally, in an April 2012 statement the Veteran identified outstanding records of interim treatment (at the Boise VA Medical Center Behavioral Health Clinic) for the disability at issue, and requested that they be secured. Inasmuch as VA treatment records are constructively of record, and because they are alleged to be pertinent, such action is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record copies of the complete updated (i.e., those not already associated with the record) clinical records of any (and all) VA evaluations and treatment the Veteran has received for psychiatric disability, specifically including all post-August 2010 records from the Boise VA Medical Center Behavioral Health Clinic. 2. The RO should then arrange for an examination of the Veteran by an appropriate psychologist of psychiatrist to determine the nature and likely etiology of his psychiatric disability, and specifically whether it is related to his service/events therein. The examiner must review the Veteran's record (to include the claims file with this remand) in conjunction with the examination. The examiner should specifically note that at least 2 stressor events alleged by the Veteran as occurring on the Kitty Hawk while he was serving aboard that vessel (including an officer being sucked in the engine of a jet) have been corroborated (and that he served in an area of hostilities, and has alleged further plausible events occurring on the Kitty Hawk). Based on review of the record and examination/interview of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify, by medical diagnosis, each psychiatric disability entity found? Specifically, is it at least as likely as not (a 50% or better probability) that he has PTSD (in accordance with DSM-IV) related to a stressor event in service? If PTSD is not diagnosed, please identify the symptoms necessary for such diagnosis found lacking. (b) For any (and each) psychiatric disability entity other than PTSD diagnosed, please identify the likely etiology. Specifically, please opine whether each such disability is at least as likely as not (a 50% or better probability) related to the Veteran's service. For any psychiatric disability that is found to be unrelated to service, please identify the etiology considered more likely. The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature as deemed appropriate. 3. The RO should then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 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). _________________________________________________ GEORGE R. SENYK 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).