Citation Nr: 1307582 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-14 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from April 1962 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. Although the issue on appeal was characterized by the RO as entitlement to service connection for PTSD, medical evidence shows that the appellant has been diagnosed with various psychiatric disorders which may arise from the same symptoms for which the Veteran is seeking benefits. Therefore, the issue, as reflected on the title page of this decision has been broadened to address the question of entitlement to service connection for any acquired psychiatric disorder, including PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). For reasons discussed below, this 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 The Veteran asserts that his psychiatric problems first manifested while he was on active duty. Specifically, he contends that his current mental health problems may be the result of various experiences incurred during service, including repeated harassment by other service members while stationed at Fort Benning, Georgia, to include physical assaults and an attempted sexual assault. The Veteran also describes an incident in which he reports that he was nearly injured and/or killed during napalm target practice by the United States Air Force. Review of the service treatment records reveals that the Veteran was followed by mental hygiene consultation services while stationed at Fort Benning, Georgia. Diagnoses noted in 1964 and 1965 summary reports include a chronic schizoid personality disorder, and an immature personality. In addition to the foregoing, service treatment records indicate that the Veteran was seen on multiple occasions for injuries incurred during apparent altercations with other service members. A February 1964 emergency room report indicates that he was treated for a laceration to the left side of his head incurred during a fight at Kelley Hill. An August 1964 dispensary record contains reference to earlier knife wounds to the Veteran's left backside. Finally, records show that the appellant was admitted for neuropsychiatric evaluation in September 1964 following a fistfight in the barracks; an allegation of a closed head injury with memory loss was also noted. The assessment was mild, chronic schizoid personality disorder. Post service, the earliest clinical evidence of mental health problems is an April 2004 claim for compensation for 'depression.' Medical evidence dated beginning in February 2006 shows that the Veteran had undergone multiple evaluations by psychologists and psychiatrists. The diagnoses include schizophrenia, by history; PTSD; schizoaffective disorder; bipolar disorder; rule out obsessive compulsive disorder; and rule out dissociative disorder. An Axis II diagnosis of schizoid personality disorder is also of record. As to the onset and/or origin of these disorders, none of the medical evidence clearly discusses a link to military service. An August 2006 VA psychiatry consult does, however, indicate that the Veteran's paranoia symptoms could very well be related to his in-service assaults. Similarly, a February 2006 psychology evaluation report notes the Veteran demonstrates consistent symptoms of PTSD which makes his story of homosexual harassment quite plausible. Pertinent to the reasons for this remand, it is not clear from the medical evidence of record what psychiatric disorders best describe the Veteran's current disability picture. Further, as noted above, while evidence indicates that his current psychiatric disorders may be related to military service, it does not provide sufficient information regarding the onset and/or origin of his disorders such that service connection may be awarded. Under these circumstances, an examination with a medical opinion is warranted to address whether any acquired mental health disorder is related to his military service. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further examination is also necessary to determine whether the Veteran suffers from PTSD, as VA regulations contain special development procedures and evidentiary requirements for a claim of entitlement to service connection for PTSD. See 38 C.F.R. § 3.304(f) (2012). In this regard, although service treatment records confirm that the Veteran was physically assaulted during service, none of this evidence makes mention of any alleged sexual assault. Further, there is no significant discussion regarding the circumstances of these physical altercations. Rather, there is evidence of mental health treatment and altercations with other service members. Service personnel records show a number of disciplinary problems, including three Article 15s and a Special Court Martial for being absent without leave. When developing a claim for PTSD based on an allegation of an in-service personal assault, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Given the above, a mental health professional's assessment of the evidence is warranted. Prior to obtaining any examination and opinion, the RO/AMC should ensure that the record before the examiner is complete. As noted above, service treatment records reflect that the Veteran was seen by the mental hygiene service while stationed at Fort Benning between February 1964 to April 1965. While the current service treatment records contain summary reports by this service, the mental hygiene records themselves are not associated with the claims file. Mental hygiene records were previously filed separate from a veteran's service treatment records and there is no indication that any specific request for any separate mental health records has ever been made to the appropriate authorities. Thus, on remand, the RO/AMC should obtain and associate with the claims file any available mental hygiene records pertaining to the Veteran's evaluation at Fort Benning, Georgia from February 1964 to April 1965. See 38 C.F.R. § 3.159(c)(3). Similarly, the RO/AMC should obtain and associate with the claims file any inpatient clinical and/or psychiatric records related to the Veteran's service. Id. The appellant stated during this appeal that he was hospitalized three times while stationed at Fort Benning for psychiatric problems. Only the dates of one of these hospitalizations is evident from the current record - i.e., September 18 to 19, 1964 at Martin Army Hospital. Therefore, the RO/AMC should contact the Veteran for additional information regarding any other in-service hospitalization. In providing this information the appellant should identify the date of hospitalization within a two month term. Based on the Veteran's response, reasonable efforts should be made to obtain any outstanding clinical inpatient records. The Veteran should also be requested to provide additional information, such as the date, place, and circumstances, surrounding the alleged in-service incident where he found himself in a Jeep in the middle of a napalm practice airfield. Based on the Veteran's response, the RO/AMC should take appropriate action to verify this incident. See 38 C.F.R. § 3.304(f). Finally, recent VA treatment records should be obtained from any appropriate facility, including the Mountain Home VA Medical Center. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession.). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to request: (a) information regarding any evaluation and/or treatment pertaining to his claimed psychiatric disorder since June 2008; (b) information regarding any alleged in-service psychiatric hospitalizations (the date provided must be within a two month window); and, (c) information, to include the date, place, and circumstances, surrounding his alleged in-service incident where he purportedly found himself in a Jeep in the middle of a napalm practice airfield. 2. Based on the Veteran's response to the above request, the RO/AMC should make reasonable efforts to obtain any outstanding treatment records and/or verify any alleged stressor through the U.S. Army and Joint Services Records Research Center. All records obtained should be associated with the claims file. If the RO/AMC cannot locate any records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Request all relevant psychiatric treatment records from the Mountain Home VA Medical Center for the period since June 2008. All records obtained should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 4. Request from the appropriate sources, to include the National Personnel Records Center and the Records Management Center, any outstanding mental hygiene records pertaining to the Veteran's evaluation and/or inpatient treatment by the mental hygiene service at Fort Benning, Georgia at times between February 1964 and April 1965. All records obtained should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 5. Request from the appropriate sources, to include the National Personnel Records Center and the Records Management Center, any outstanding clinical inpatient records pertaining to the Veteran, including records from his September 18, 1964 admission at Martin Army Hospital. All records obtained should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 6. After all records and/or responses from each contacted entity have been associated with the claims file, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. All indicated tests must be accomplished. The claims file, a copy of this REMAND, and access to Virtual VA must be provided to the examiner. The examiner must document his/her review of Virtual VA. The examiner must identify all diagnosed acquired psychiatric disorder. Then, for each diagnosed disorder, the examiner is requested to opine whether it is at least as likely as not that the disorder had its onset during the Veteran's active military service or is otherwise related to such service or events therein. If the Veteran is diagnosed with PTSD, the examiner must identify what evidence independently verifies the claimed stressor upon which the diagnosis is based. The examiner is informed that while the service treatment record documents multiple physical assaults to the Veteran during service, the circumstances of these assaults is unclear. As such, in rendering these opinions, the examiner must consider and discuss whether the evidence of record, including service treatment records documenting mental health treatment and physical assaults; and service personnel records indicating disciplinary problems, are sufficient to corroborate the Veteran's claimed physical and sexual harassment by other service members. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why the cause of any diagnosed psychiatric disorder is unknowable. If the Veteran is diagnosed multiple psychiatric disorders, some of which are found to be related to service, and some of which are found not to be, the examiner must differentiate which symptoms are related to any disorder the examiner finds is related to service. A complete rationale must accompany each opinion offered. 7. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 8. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of his claims. 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 the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 9. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issue on appeal. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DEREK R. BROWN 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).