Citation Nr: 1310616 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 11-01 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) in the Army National Guard of Illinois from June 8, 1963, to December 7, 1963; and he had active service from May 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a May 2012 video-conference hearing and a transcript thereof is on file. At the time of the video-conference hearing, he submitted additional evidence and waived initial consideration of that evidence by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such newly received evidence. Thereafter, in June 2012, the Veteran submitted additional evidence, consisting of maps of Korea, but he did not waived initial consideration of that evidence by the AOJ. However, the AOJ will have an opportunity to consider it in the readjudication of the merits of his claim on remand. While the May 2010 rating decision on appeal considered PTSD in the discussion of whether service connection for an acquired psychiatric disorder was warranted, an April 2012 rating decision specifically denied service connection for PTSD. However, as the Veteran had perfected his appeal of the May 2010 rating decision, the Board finds that his claim encompasses all acquired psychiatric disorders, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As indicated previously, the Veteran had active service from May 1968 to August 1969 with 6 months and 27 days of foreign service. His military occupational specialty (MOS) was a light weapons infantryman and his awards include the Korean Defense Service Medal and the Republic of Korea Presidential Unit Citation Badge. VA outpatient treatment (VAOPT) records from Salt Lake City from December 2008 to January 2009 include a January 2009 report of psychological evaluation and testing for possible military-related PTSD. The Veteran reported that his MOS during active duty in Korea was light weapons infantry and he reported service near the Korean DMZ from January to August 1969. He reported experiencing some combat in Korea and was afraid for his life on many occasions. He reported that he had begun taking medication prescribed by his primary care physician for depression in 2001. He had short-term counseling from Catholic Social Services in the past "after stressful life events (lost job)." He reported that he had driven behind a bus full of Korean civilians that exploded upon going over a mine and being shocked and horrified due to the carnage. It was felt that it was likely that he met "Criterion A, traumatic event" but it was unlikely that he met Criterion B, re-experiencing symptoms associated with at least one traumatic experience. It was likely that the met Criterion C, avoidance symptoms, associated with at least one traumatic experience, and Criterion D, hyperarousal symptoms, associated with at least one traumatic experience. The overall assessment was that he did not meet DSM-IV diagnostic criteria for military-related PTSD because he did not meet the criteria for re-experiencing. He was referred for short-term individual therapy at the Pocatello Vet Center. Records of the Pocatello Vet Center from April 2009 to January 2010 include a report of a November 2009 psychological evaluation, after which the diagnosis was depression and rule out PTSD. A December 2009 addendum noted that a January 2009 assessment had not confirmed a diagnosis of PTSD but a diagnosis of depression, not otherwise specified (NOS). The Veteran's individual psychotherapist, who had treated him since March 2009, had noted that subsequent to the January 2009 the Veteran had been experiencing an increase in "PTSD re-experiencing symptoms." It was noted that the criteria for assessing the presence of PTSD were (A) traumatic event, (B) re-experiencing, (c) avoidance, (D) hyperarousal, (E) duration, and (F) clinically significant distress. The Veteran identified two particularly traumatic experiences in Korea. The first involved ensuring the safety of a location, involving a crane accident, in which a driver had burned to death. The second was driving behind a bus that was hit with an explosive, causing death and injuries. His response at the time of these incidents had included horror, and at the time of the bus explosion he had been fearful, being unaware of what awaited him down the road and realizing his life was in danger. He endorsed all five re-experiencing symptoms and his responses to questions likely indicated that he met Criteria B. The results of the assessment were suggestive that the Veteran was experiencing an anxiety disorder, most closely related to "military related PTSD." The diagnosis offered currently was an anxiety disorder, NOS, to reflect the numerous PTSD symptoms he was experiencing, "while his present symptom report is just shy of being consistent with DSM-IV-TR diagnostic criteria" for PTSD. The Veteran's treating VA licensed psychologist reported in June 2010 that the Veteran had "Anxiety disorder NOS (post-traumatic stress disorder) and Depression NOS" for which she had treated him since November 2009 to address his PTSD symptoms. His PTSD symptoms had developed secondary to his military service, during which he was exposed to several traumatic experiences that produced feelings of horror, and subsequent PTSD symptoms. The Veteran's treating VA licensed psychologist reported in July 2010 that the Veteran was treated for "Anxiety NOS (post-traumatic stress disorder) and Major Depressive Disorder, recurrent." She noted that, in the course of his treatment, it became clear that his PTSD symptoms had developed secondary to his military service, having been exposed to numerous traumatic experiences in Korea. It was believed that he had an anxiety disorder, NOS, as a direct result of military trauma. At the March 2010 Board video-conference hearing in support of the Veteran's prior claim for service connection for diabetes, he testified he would go near or into the Korean DMZ during his active duty and that "we got involved with small arms fire," although he had not fire into the DMZ. Page 12 of that transcript (T12). During the appeal, a June 2010 Board decision granted service connection for diabetes mellitus, type II. The Board found that the record was in relative equipoise as to whether the Veteran traveled to the vicinity of the Korean DMZ during the period when Agent Orange or other herbicide agents were utilized there to suppress vegetation. At the May 2012 video-conference hearing in connection with the instant appeal, the Veteran testified that he had served in Korea from January 1969 with the 7th Infantry Division at Camp Casey as a sergeant with the divisional commanding management inspection team because of his college education and prior MOS as a supply specialist but he had to travel a great deal doing inspections. T 3 and 4. On one occasion he was in a vehicle behind a bus full of people outside a village, Poponi (phonetic spelling), and the bus blew up and his truck was struck by human blood and tissue, and he saw body parts on the road. T 4 and 5. He had maps of Korea which showed where this event occurred. T6. The Veteran testified that he at been sent to a 7th Infantry Division unit at the DMZ for an overnight billet, during which he heard the sound of small arms fire and grenades, at which time he had combat gear and weapons. The next morning he helped load two body bags into an ambulance and one of the body bags leaked, causing him to get blood and bodily fluids on his person and clothing. He was told that the bodies were Koreans, and they may have been North Koreans. T8. It was stated that the bus incident occurred in May or June 1969 and the firefight occurred in July 1969. Other incidents would be described by the Veteran in later correspondence. T9. He now had nightmares. He went the Salt Lake VA clinic in 2008, and when it was found that he possibly had PTSD he began treatment with VA Dr. B. C. B (a licensed psychologist). T13. He had first sought treatment for depression in Kentucky in 2000 or 2001 but had been experiencing symptoms even prior to that time. T14. After the video-conference hearing, the Veteran and his spouse submitted sworn statements. The Veteran reported that, in December 2000 or January 2001, he arranged for counseling with an LSCW of the Catholic Charities in the Catholic Diocese of Covington, Kentucky, and has last seen that counselor in May 2002. At the counseling the Veteran had expounded upon his in-service stressors. Also, he provided further details as to four events while in Korea. In June 1969 his truck had been behind a bus in Korea and he had seen sparks underneath the bus before it exploded. In March 1969 he had investigated the death of a Korean National who had been electrocuted and burned while moving a crane near high voltage wires. The firefight at the DMZ had occurred in June or July 1969. In July or August 1969 his truck had accidently driven into a mine field. The May 2010 rating decision on appeal noted that the Veteran's service treatment records (STRs) were negative for a psychiatric disorder (and it is not contended otherwise); that he had sought VA treatment since 2008; and that PTSD had not been formally diagnosed. The supporting lay statements were not sufficient to allow for confirmation of his reported in-service stressors and, in the absence of receipt of a Purple Heart, Combat Infantry Badge, Combat Action Ribbon or decoration for valor, a specific stressor incident must be verified. Further, although a VA PTSD evaluation stated that his description of incidents in Korea likely met the stressor criteria for a diagnosis of PTSD, such limited endorsement of an unconfirmed situation failed to qualify that finding as a clinical diagnosis of PTSD. However, effective July 13, 2010, 38 C.F.R. § 3.304(f) (3) (stressor related to POW experience) and (f)(4) (stressor of in-service personal assault) were renumbered, respectively as (f)(4) and (f)(5), and a new (f)(3) was added which reduces the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed.Reg. 39843 through 39852 (July 13, 2010). Unlike the holdings in Doran v. Brown, 6 Vet. App. 283, 289 (1994) and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996) that a claimant's lay testimony alone is insufficient to establish a stressor in a claim for service connection for PTSD, in Ervin v. Shinseki, 24 Vet. App. 318, 320 (2011) it was held that the recent amendment creating 38 C.F.R. § 3.304(f)(3), "is 'liberalizing' in that it allows, in some circumstances, [i.e., from hostile military or terrorist activity] for a noncombat Veteran's lay testimony to establish the occurrence of a claimed stressor so long as a psychiatrist or psychologist confirms that the testimony is sufficient to support a PTSD diagnosis and that the symptoms are related to that stressor. 75 Fed.Reg. at 39,843." The reduced evidentiary standard of not requiring corroborative stressor evidence is not applicable solely because a Veteran reports having experienced fear. VA will not rely on a Veteran's lay evidence alone to establish occurrence of the stressor without first meeting the following four requirements. First, the Veteran must have experienced, witnessed, or have been confronted by 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, and the response thereto must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. Second, a VA psychiatrist or psychologist, or one contracted by VA, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the symptoms are related to the claimed stressor. Third, there must be in the record no clear and convincing evidence to the contrary, and fourth, the claimed stressor must be consistent with the places, types, and circumstances of the Veteran's service. 75 Fed.Reg. 39843, 39845 (July 13, 2010). The rule has no geographic requirement and is not limited to service in a combat zone or on land. 75 Fed.Reg. 39843 (July 13, 2010). A MOS may be considered as evidence of exposure to a stressor, including hostile military or terrorist activity. See Veterans Benefits Administration (VBA) Adjudication Procedures Manual Rewrite M21-1MR (Manual M21-1MR), Part IV, subpart ii, ch. 1, sec. D, para. 13.k. However, a particular MOS does not necessarily establish such an exposure. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). 75 Fed.Reg. 39843 (July 13, 2010). The new rule [38 C.F.R. § 3.304(f)(3)] has three features relevant to this challenge: one, it allows a Veteran to establish PTSD without supporting evidence; two, the lower evidentiary standard only applies if a VA psychologist or psychiatrist, or one who has contracted with the VA, confirms the claimed-stressor supports the diagnosis; and three, it defines the Veteran's 'fear of hostile military or terrorist activity' as involving a response characterized by 'a psychological or psycho-physiological state of fear, helplessness, or horror.' Id. ... the rule does not require a VA practitioner to confirm the diagnosis of PTSD. Rather, a VA practitioner is only required to confirm that the claimed-stressor supports the diagnosis. National Organization of Veterans's Advocates, Inc., et. al. v. Secretary of Veterans Affairs, No. 2010-7136, slip op. at 3 (Fed. Cir. Jan. 20, 2012); 2012 WL 164436 (C.A. Fed.) (upholding the validity of 38 C.F.R. § 3.304(f)(3) as revised effective July 13, 2010). Under the regulation, a private practitioner's examination will be considered along with a VA practitioner's assuming there is also corroborating evidence of the claimed stressor. The new rule, however, provides a relaxed evidentiary standard only where a VA practitioner concludes that the claimed-stressor occurred. Id. at 5. Moreover, "[c]ombat is one of the most potent stressors that a person can experience, but ... restricting the definition of deployment-related stressors to combat may fail to acknowledge other potent stressors experienced by military personnel in a war zone or in the aftermath of combat. Those stressors include constant vigilance against unexpected attack, the absence of a defined front line, the difficulty of distinguishing enemy combatants from civilians, the ubiquity of improvised explosive devices, caring for the badly injured or dying, duty on the graves registration service, and being responsible for the treatment of prisoners of war." 75 Fed.Reg. 39843, 39845 (July 13, 2010). However, ultimately, VA adjudicators, not examining psychiatrists and psychologists, will decide whether the claimed stressor is consistent with the Veteran's service. 75 Fed.Reg. 39843, 39844 (July 13, 2010). In the instant case, as the Veteran served in Korea, near the DMZ, his alleged stressors of receiving incoming small arms fire and grenades during a firefight in such location in approximately June 1969 and driving into a minefield in July or August 1969 are consistent with fear of hostile military or terrorist activity. Therefore, independent verification of such stressors is not necessary. With respect to his other alleged stressors, to include witnessing a crane accident where the driver burned to death in March 1969, driving behind a bus that exploded in May or June 1969, and loading body bags when one spilled, such are not consistent with fear of hostile military or terrorist activity and, therefore, such require independent verification. In this regard, the AOJ should attempt to verify such alleged stressor with any appropriate source, to include United States Army and Joint Services Records Research Center (JSRRC). Thereafter, the Board finds that the Veteran should be afforded a VA examination so as to determine the current nature and etiology of his acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the AOJ should specifically include documentation as to whether the Veteran's claimed stressors involving witnessing a crane accident where the driver burned to death in March 1969, driving behind a bus that exploded in May or June 1969, and loading body bags when one spilled have been verified. Thereafter, the examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of a verified in-service stressor, to include those that have been verified or are related to the Veteran's fear of hostile military or terrorist activity. The examiner should also provide an opinion as to whether it is at least as likely as not that any of the Veteran's current acquired psychiatric disorders, other than PTSD, are otherwise related to the Veteran's military service, Also, it appears that there has been no attempt to obtain records of the Veteran's earliest counseling or treatment by a licensed clinical social work associated with the Catholic Charities of the Catholic Diocese of Covington, Kentucky. Likewise, the record reflects that he has been treated by VA and the Pocatello Vet Centers since 2008. Therefore, on remand, the Veteran should be given an opportunity to identify all healthcare providers who have treated him for any acquired psychiatric disorder since service. Thereafter, any identified records, to include outstanding VA treatment records, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for an acquired psychiatric disorder since service. After securing any necessary authorization from him, obtain all identified treatment records, to include those from the Catholic Charities of the Catholic Diocese of Covington, Kentucky, since 2000, and from the VA facility or Vet Center at Pocatello, Indiana, since January 2010, as well as treatment records dated from 2008 to the present that are not already contained in the claims file from the Salt Lake City, Utah, VA medical facility. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should attempt to verify the Veteran's alleged stressors regarding witnessing a crane accident where the driver burned to death in March 1969, driving behind a bus that exploded in May or June 1969, and loading body bags when one spilled with any appropriate source, to include JSRRC. Any response should be documented in the claims file. 3. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. In this regard, the AOJ should specifically include documentation as to whether the Veteran's claimed stressors involving witnessing a crane accident where the driver burned to death in March 1969, driving behind a bus that exploded in May or June 1969, and loading body bags when one spilled have been verified. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of a verified in-service stressor. In this regard, the examiner should consult the claims file in order to determine whether the Veteran's claimed stressors involving witnessing a crane accident where the driver burned to death in March 1969, driving behind a bus that exploded in May or June 1969, and loading body bags when one spilled have been verified by the AOJ. The examiner is further advised that the Veteran's stressors related to fear of hostile military or terrorist activity, to include receiving incoming small arms fire and grenades during a firefight in the Korea DMZ in approximately June 1969 and driving into a minefield in July or August 1969, are considered verified. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include his verified stressors. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology, as well as his treating VA licensed psychologist's June 2010 and July 2010 statements relating his acquired psychiatric disorders to military service. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include such submitted by Veteran directly to the Board. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. JAEGER 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).