Citation Nr: 1311796 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 08-38 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder. ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to January 1972 and from August 1976 to August 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2011, the Veteran failed to appear for a hearing before a Veterans Law Judge. As he has not requested that his hearing be rescheduled, his request is considered withdrawn. 38 C.F.R. § 20.1304 (2012). In a December 2011 decision, the Board reopened the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. This decision remanded the Veteran's claim for service connection for an acquired psychiatric disorder and remanded his claims for service connection for an eye disorder and tinnitus. Rating decisions dated in September 2012 and January 2013 granted the Veteran's claims for service connection for tinnitus and for dry eyes. Only the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, is currently in appellate status before the Board. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. 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 In February 2013 the Veteran submitted additional pertinent evidence in support of his claim which consisted of a copy of a page from a book regarding bipolar disorder and of VA medical records. Although the VA medical records are dated prior to the most recent supplemental statement of the case, issued in January 2013, some of these treatment records were not of record at that time and have not been considered by the RO. The Veteran has not waived RO review of this evidence. Consequently, remand of the Veteran's claim for RO review of this new evidence, which was received prior to the certification of the Veteran's claim to the Board, is required. 38 C.F.R. § 20.1304(c) (2012). The Veteran maintains that he has PTSD due to being fondled sexually by a superior. In this case, the Veteran has not been provided notice of the information and evidence necessary to substantiate a claim for service connection for PTSD based on personal assault stressors. The Veteran must be sent such notice. A review of the Veteran's claims file and the Veteran's electronic VA file indicates that the record contains copies of his VA records only as recent as July 23, 2012. The Veteran's updated VA treatment records from July 23, 2012 to present should be obtained. In a July 2007 letter the Veteran reported that he received treatment at Fort McPherson, Georgia under Tricare, from August 1993 to 1997. The record does not indicate that such records have been requested or obtained. These records should be requested. The VA psychiatric opinions dated in January 2012 and January 2013 are contradictory. A new VA psychiatric examination that reconciles the differing opinions should be obtained. Additionally, in February 2013 the Veteran stated for the first time that he also has PTSD due to the crash of an Air Force plane at Kunsan Air Force Base near his office when he was working there. The Veteran also stated that he did not know what a bipolar disorder was when he was in service, and that his service personnel records reflect the behavior of a person who had bipolar disorder. The Veteran's contentions should be considered by the VA examiner in determining the etiology of any psychiatric disorder found to be present. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) to include advising the Veteran that an in-service personal assault stressor may be corroborated by evidence from sources other than service records, as defined in 38 C.F.R. § 3.304(f)(5). All specific examples of alternative sources of evidence listed in 38 C.F.R. § 3.304(f)(5) must be included in the notification to the Veteran. The Veteran should be afforded an appropriate period of time for response to all written notice and development as required by VA law. 2. Obtain the Veterans complete updated VA treatment records dated from July 23, 2012 to present. 3. Request copies of the Veteran's reported Tricare treatment at Fort McPherson, Georgia, dated from August 1993 to December 1999. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 4. When the above actions have been accomplished, afford the Veteran with a VA examination to determine the identity and etiology of any psychiatric disorders that may be present, to include PTSD and bipolar disorder. Prior to the examination, the claims must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for PTSD, bipolar disorder and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to provide opinions on the following: a. Whether the Veteran has PTSD, and if so, please explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. If the examiner determines that the Veteran has PTSD related to the claimed in-service stressor of personal assault, the examiner should review the claims folder and render an opinion as to whether there is evidence of changed behavior after an alleged assault or any other evidence of record, which would be consistent with the alleged trauma. b. With regard to bipolar disorder or any other psychiatric disorders, the examiner is requested discuss the January 2012 and January 2013 VA opinions, and to discuss whether the Veteran's service personnel records (contained in two of the four white envelopes found in Volume 2 of the claims file) provide any indication of the presence of a psychiatric disorder during service. The VA examiner should then provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater probability) that any current psychiatric disorder is related to the Veteran's military service. The examiner should provide an explanation for all conclusions reached. 5. Upon completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's claim, based on a review of the entire evidentiary record. In the adjudication of the claim of entitlement to service connection for PTSD, if a diagnosis of that disorder is made, a determination must be made as to whether the diagnosis is based upon an in-service stressor that has been corroborated, including by evidence from sources other than service records, as defined in 38 C.F.R. § 3.304(f)(5). If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).