Citation Nr: 1310852 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-38 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder. 2. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975. He had additional Army Reserve duty through July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denying entitlement to service connection for posttraumatic stress disorder (PTSD). The Board denied entitlement to service connection for PTSD in July 2011. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the parties to the motion requested that the Board's July 2011 decision be vacated and remanded because the Board did not consider entitlement to service connection for acquired psychiatric disorders other than PTSD. An Order of the Court granting the JMR was issued in May 2012. In March 2013, the Veteran submitted new evidence with a waiver of RO review. 38 C.F.R. § 20.1304 (2012). The 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 parties to the JMR have determined that the Veteran's claim contemplates a service connection claim for all currently diagnosed acquired psychiatric disorders rather than just limited to the PTSD diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim should focus upon the symptoms the claimant is attempting to service-connect however diagnosed). Accordingly, the Board has rephrased the issue on the title page. The medical evidence shows diagnoses of PTSD and chronic major depression during the pendency of the Veteran's claim. In March 2013, the Veteran submitted a nexus statement from his private provider, Dr. E.W.H., indicating that his chronic major depression is a result of his exposure to numerous stressors in service. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not had a VA psychiatric examination for the purpose of addressing his service connection claim for an acquired psychiatric disorder other than PTSD. In light of the available information, a remand for the scheduling of a VA medical examination to determine the nature and etiology of the Veteran's chronic major depression, and any other identified acquired psychiatric disorder other than PTSD, is warranted. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Regarding PTSD, the identified stressor in support of the Veteran's claim is that in February or March 1973, during training exercises at an Army base in San Juan, Puerto Rico, he witnessed an incident in which an M81 grenade accidentally exploded killing a fellow solder, F.O. The RO contacted the United States Armed Services Center for Unit Records Research (CURR), the appropriate unit records depository and research agency at that time, to attempt to verify the claimed incident. In July 2007, CURR responded that unit history documents showed that during March 1973, the Veteran's battalion was actively preparing for Tropical Falcon, an off-post training exercise at Salinas Training Base, Puerto Rico. The training exercise had included an airborne assault exercise, small unit training, and live fire exercises, and lasted from March 14 to March 27, 1973. However, the history did not document any incidents in which a round exploded killing a soldier during training in Puerto Rico. Also, the Army casualty information available did not list anyone by the name F.O. as non-hostile killed in 1973. The CURR report further stated that 1973 morning reports were not on file with that office, but that morning reports might be requested to verify if anyone assigned to that unit died in March 1973. In August 2010, the RO inquired about the morning reports. Morning reports were not provided; however a summary indicates that the reports did not show a non-hostile death at Salinas Training Base in March 1973. Notably, a copy of the 1973 casualty information has been associated with the claims file but copies of the March 1973 unit histories and morning reports have not. The Veteran argues that summaries of these documents are not adequate for rating purposes. Therefore, the Board finds that additional attempts should be made to obtain and associate with the claims file copies of the March 1973 unit histories and morning reports. 38 C.F.R. § 3.159(c)(2) (2012). The Veteran also argues that unit history documents and morning reports should be obtained for April 1973 because a December 2007 statement from an individual with whom he served states that on or around April 13, 1973 there was an accident during a training exercise in San Juan, Puerto Rico in which an unnamed individual was killed by the firing of an M81 grenade. Following receipt of this statement, the Veteran updated his description of the alleged stressor to indicate that there were several casualties attributable to the incident including three individuals killed, and five or six individuals wounded. Accordingly, the Board finds that attempts should be made to determine whether the Veteran was stationed in Puerto Rico in April 1973. If so, unit history documents and morning reports should be obtained from the appropriate unit records depository and research agency to determine whether a non-hostile was killed during training exercises. 38 C.F.R. § 3.159(c)(2). All records should be associated with the claims file. Provided on further case development that the Veteran's alleged stressor is independently confirmed, the RO/AMC should schedule him for a VA psychiatric examination to determine whether he has PTSD due to this verified incident. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall afford the Veteran an opportunity to submit or identify any additional evidence relevant to his service connection claims for PTSD and for an acquired psychiatric disorder other than PTSD. Appropriate steps should be taken to obtain any identified records. 2. Contact the National Personnel Records Center and/or other appropriate unit records depository and research agency, and request that it obtain and associate with the claims file copies of unit histories and morning reports for the unit with which the Veteran served in March 1973. If the RO/AMC determines that the Veteran was stationed in Puerto Rico in April 1973, copies of unit histories and morning reports for the unit with which he served in April 1973 should be obtained and associated with the claims file. 3. Provided that an in-service stressor is independently verified, then the RO/AMC should schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current PTSD. The claims folder and pertinent treatment records on the virtual VA system must be made available to the examiner for review and the examiner must indicate review of these items in the examination report. The clinical history and all pertinent psychiatric pathology should be discussed in the examination report. If PTSD is diagnosed, the examiner should specify whether an independently verified stressor was used as a basis for the diagnosis. The examiner should then opine whether it is at least as likely as not that PTSD had its onset due to the confirmed in-service stressor. A rationale must be provided for all opinions expressed. 4. The RO/AMC shall schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorders other than PTSD. The claims folder and pertinent treatment records on the virtual VA system must be made available to the examiner, and the examiner must indicate review of these items in the examination report. In addition, the examiner must consider and address in the examination report the Veteran's lay statements relating to his psychiatric history (particularly as relates to service and any pertinent incidents therein), symptomatology, and onset, as appropriate. All studies deemed appropriate should be performed and all findings should be set forth in detail. a). The examiner should identify and diagnose any currently manifested acquired psychiatric disorder(s), describing the symptomatology associated with the diagnosed disorder(s) to the extent possible. b). For each diagnosed acquired psychiatric disorder, the examiner should opine whether it is at least as likely as not (at least a 50 percent probability) that the disorder first manifested during service or is etiologically related to service. In providing this opinion, the examiner is requested to evaluate the Veteran's lay history as appropriate and pertinent. In answering the questions posed above, the examiner is advised that the Veteran is generally considered competent to provide lay reports relating to matters within his personal knowledge, and that his reports must be considered in formulating the requested opinion. If the Veteran's lay reports are discounted, the examiner should provide a rationale for doing so. A complete/supporting rationale should be provided for all opinions expressed. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner determines that it is not feasible to respond to any of the requested inquiries the examiner should explain why it is not feasible to respond. It would be helpful if the examiner, in expressing his or her opinion, would use the language "likely," "unlikely" or "at least as likely as not." The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 5. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 6. The RO/AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).