Citation Nr: 1308043 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-01 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include PTSD. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the RO in Detroit, Michigan, which, in relevant part, denied service connection for PTSD, major depression, and a mental disorder. The RO did not certify an appeal regarding the claim for service connection for a psychiatric disability, but rather simply for a claim for service connection for PTSD. However, the RO did conduct development appropriate to resolving the question of a broader claim, and the medical evidence of record reflects psychiatric diagnoses other than PTSD-including depression, a dysthymic disorder, and an anxiety disorder. The Veteran's attorney argues that the claim should include the Veteran's dysthymic disorder. Because recent judicial caselaw addresses the consideration of all symptoms of mental abnormality, the Board redefined the Veteran's psychiatric claim as is listed on the title page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). In July 2011, the Board denied, service connection for a psychiatric disorder, to include PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 order, the Court granted a Joint Motion for Remand to vacate the Board's denial of that claim. Pursuant to the actions requested in the Joint Motion, the issue was remanded to the Board for development and readjudication consistent with the directives contained therein. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for his psychiatric problems. He asserts that he was separated from service because he could not function due to his mental disorder(s) and that he was deprived of a Medical Board that would have diagnosed him properly at that time. See Lay Statement received in June 2006. Medical evidence of record reflects diagnoses of various psychiatric disorders, including depression, a dysthymic disorder, and an anxiety disorder. The information in the current record, however, is inadequate to make an informed decision and discloses a need for further development prior to final appellate review of this claim. Here, the evidence of record indicates that the Veteran had no Vietnam service or combat service. His DD Form 214 confirms that his military occupational specialty (MOS) was that of a supply specialist, an occupation that does not suggest active combat. Also, he did not receive any commendations or awards, such as the Combat Infantryman Badge, Purple Heart, or similar citation, typically awarded primarily or exclusively for circumstances relating to combat. Moreover, the Veteran's stressors do not relate to combat. Rather, he contends that his psychiatric problems stem from stressful events that occurred while he was stationed at Clark Air Force Base (AFB) in the Philippines. Specifically, he has described seeing civilians and servicemen cut or stabbed over disagreements. He reported seeing civilians and animals killed in the streets over food. See VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, received in July 2006. He also witnessed gang warfare and gang beatings. See September 2006 VA examination report. Although service treatment records do not specifically make reference to a psychiatric disorder, they do show that the Veteran's complained of nervousness in August 1971. He was sent to the hospital by his supervisor for being "very nervous inside," but did not wait to be seen. The Veteran indicated that he would check in at sick call the next day. No sick call entry is of record. The Veteran was admitted to a LCPC program for suspected drug abuse in January 1972. He admitted to recent experimentation with smoking heroin since the previous December and also reported using marijuana. He was facing charges for drug abuse at the time of the program. He reported that he entered the Air Force to avoid the draft and had no problems in basic, He did not go to technical school, but was assigned to Supply and did not like it. He was sent to Holland AFB and stayed there for eight months before transfer to Clark AFB. The Veteran did not receive any Article 15s, but was court-martialed for 35-10 insubordination and disobeying an order. He reported being found not guilty and given a letter of reprimand. The review of systems was noncontributory. A mental status examination revealed a passive thin man with marked hostility, which he displayed in the passive-aggressive manner. He was found to have a passive-aggressive personality with improper use of drugs. He also engaged in sociopathic behavior while on the ward, joining in a rebellion against the staff. He was recommended for the Drug Rehabilitation Program. If he did not cooperate, he was recommended for separation under 39-12. The Veteran was ultimately discharged under 39-12 according to his separation physical. There is a specific notation of no overt psychiatric disorder. A second entry notes no mental defects. In September 2006, the Veteran was referred for VA examination for the specific purpose of obtaining an opinion as to whether or not he had a psychiatric disorder that could be related to his military service. The Veteran substance abuse was noted to have been triggered by "stress from life." He also gave a history of increased alcohol use as a result of witnessing events in the Philippines as well as when he was stationed in New Mexico. However, the examiner concluded that the Veteran's depression was not related to his military service, but rather seemed to be reactive to more recent psychosocial stressors such as his current joblessness, marital difficulties, and his feelings of being an inadequate provider for his family. The RO obtained an addendum opinion in March 2008. After reviewing the claims file and medical records a second time, the VA examiner reiterated his previous opinion that the Veteran's dysthymic disorder was less likely than not related to his psychological symptoms in service. He explained that the Veteran's depressive symptoms were admittedly linked to more current psychosocial stressors, such as his current joblessness and marital difficulties, rather than to chronic (enduring) issues that were implied by prior findings (e.g. " . . . passive-aggressive personality and sociopathic behavior . . . [and] disciplinary problems . . ."). Unfortunately, the VA examination report is inadequate for adjudication purposes because it does not appear that the examiner reviewed the Veteran's entire in-service medical history, as documented in the claims folder. A review of both medical opinions shows that the examiner did indicate review of the claims file. However, because he failed to even acknowledge specific events shown in the treatment records such as the Veteran's evaluation for nervousness in August 1971 and his hospitalization for heroin use in 1972, the examination report and addendum are inadequate. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given the failure of the VA examiner to fully address the evidence as documented in the Veteran's service records, the Board has no discretion and must remand this matter for another VA examination to assess all potential mental health diagnoses and determine whether the Veteran currently has a psychiatric disorder, to include PTSD, that had its onset during his period of active duty military service. Significantly, because the Veteran is competent to report the onset of psychiatric problems in service (as this requires only personal knowledge and not medical expertise and as it comes to him through his senses), the examiner must acknowledge and discuss the Veteran's contentions that he had "mental illnesses" during service and that he has experienced continued problems since that time. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on veteran's report of in-service injury and instead relied on absence of evidence in service medical records to provide negative opinion). That said, however, the Veteran's contentions regarding these symptoms also must be considered in light of the medical and other evidence of record to determine whether his lay testimony is also credible (a factual determination) to resultantly have probative value. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board also notes that with regard to stressor verification for PTSD claims, the VA regulation at 38 C.F.R. 3.304(f) was recently amended to liberalize the requirement of verification or corroboration of a veteran's claimed in-service stressor events in a PTSD claim. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). The issuance of the amended 38 C.F.R. § 3.304(f)(3) relaxes the evidentiary standard for establishing in-service stressors in claims for PTSD. This revision adds to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity" and provided that the claimed stressor(s) is(are) consistent with the places, types, and circumstances of the Veteran's service. In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. In the current appeal, it is unclear from a reading of the Veteran's statements whether he is actually contending that he was fearful of hostile military activity. Also on remand, ongoing medical records should be obtained. In this regard, the Board notes that the most recent record of any outpatient psychiatric treatment and/or evaluation that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in June 2006. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide any medical records, not already in the claims file, pertaining to post-service psychiatric treatment and/or evaluation or to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on his behalf. [The Board is particularly interested in records of psychiatric treatment and/or evaluation that the Veteran has undergone since June 2006.] Document the attempts to obtain such records. If any pertinent evidence identified by the Veteran is unavailable, inform him and request that he obtain and submit it. If any records are unavailable/do not exist, and further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. Then, schedule the Veteran for an examination to determine the nature, extent, and etiology of all current psychiatric disorder(s) that he may have. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. The claims folder must be made available to the examiner for review of the case, and the examination report should include a discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies, including any necessary psychological testing, are to be performed, and the examiner should review the results of any testing prior to completing the report. After examining the Veteran and reviewing the relevant evidence of record, the examiner should clearly identify all psychiatric disorders found. a) Any diagnosis of PTSD must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) of the American Psychiatric Association (DSM-IV). The examiner should opine as to whether it is at least as likely as not, (i.e., a 50 percent probability or greater) that any PTSD is a result of a verified in-service stressor(s) or is otherwise related to a fear of hostile military or terrorist activity and the stressor is consistent with the types, places, and circumstances of his service. If the Veteran does not meet the criteria for a diagnosis of PTSD the examiner should explain why. b) If the Veteran is found to have a psychiatric disorder other than PTSD, the examiner should then offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability), that the first clinical manifestation of any such diagnosed disorder is traceable to any incidents, symptoms, or treatment that the Veteran experienced or manifested during service or is in any other way causally related to his active service. In answering this question, the examiner should address the Veteran's complaints of nervousness in 1971 as well as his in-service hospitalization for heroin use in 1972 as the possible onset of, or precursor to, any current psychiatric disorder. The examiner should also acknowledge and discuss any of the Veteran's statements asserting continuity of psychiatric problems since service. c) The opinions provided should include discussion of specific evidence of record and be accompanied by a clear rationale consistent with the evidence of record. The basis for the conclusions reached should be stated in full. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 3. Thereafter, readjudicate the claim for service connection for an acquired psychiatric disorder, to include PTSD. If this benefit remains denied, furnish the Veteran and his attorney an appropriate supplemental statement of the case and give them appropriate time to respond. No action is required of the Veteran until he is notified by the RO; however, he is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).