Citation Nr: 1311907 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-06 108 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from December 1975 until January 1980. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the RO that declined to reopen the Veteran's claim of service connection for PTSD. In April 2008, the Veteran testified during a hearing before a retired Veterans Law Judge at the RO; a transcript of that hearing is of record. In October 2008, the Board determined that new and material evidence had been received to reopen the claim of service connection for PTSD and remanded the reopened claim for additional development. In August 2009, the Board recharacterized the issue as service connection for an acquired psychiatric disorder, to include PTSD and again remanded the claim for further development. In May 2011, the Board denied the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In July 2012, the Court issued a single judge memorandum decision vacating the May 2011 decision and remanding the matter for further action. Finally, the Board notes that the Veterans Law Judge who conducted the April 2008 hearing is no longer employed at the Board. The law requires that the Veterans Law Judge that conducted the Board hearing shall participate in making the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2011). Thus, the Veteran was afforded an opportunity to testify at another hearing with the Board. In October 2012, the Veteran indicated that he did not wish to appear for another hearing and requested that his claim on appeal be considered based on the evidence of record. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In the July 2012 Memorandum Decision, the Court found, in pertinent part, that in the May 2011 decision, the Board failed to give adequate reasons and bases to support its decision to deny service connection for an acquired psychiatric disorder, to include PTSD. Specifically, the Court found that the Board failed to adequately explain why it found the Veteran does not have a current diagnosis of PTSD based on DSM-IV criteria. The Veteran is seeking service connection for an acquired psychiatric disorder to include PTSD. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. If, the alleged stressor is not related to fear of hostile military or terrorist activity, the Veteran's lay testimony or statements, alone, are not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). In this case, the Veteran is claiming service connection for PTSD due to several in-service stressors. To date, a stressor that has been identified by the Veteran is that he was assaulted by a fellow Marine. His service treatment records show that he received treatment for a facial laceration as a result of being struck in the face with a pole by another Marine in January 1978. In a November 2001 private psychiatric evaluation, the Veteran complained that he was not all together. He reported being suicidal most of the time. The examiner noted that the Veteran was separated from his spouse and had served for four years in the Marines. There was also a noted history of drug abuse. On examination, Axis I diagnoses were those of PTSD and R/O (rule out) major depression. A January 2002 private psychiatric progress note confirmed the diagnosis of PTSD. In an October 2006 VA treatment record, the Veteran asserted, in pertinent part, that he saw combat during his time in the Marines and that his combat mission was classified so he could not report the details but he reportedly saw many traumatic things such as children and adults being injured. He reported having some PTSD symptoms in this regard manifested by some intrusive thoughts and nightmares. On examination, Axis I diagnoses were bipolar disorder, depressed with mild psychotic features, polysubstance abuse in remission, generalized anxiety disorder, and PTSD. A November 2006 VA mental health consult note included diagnoses of bipolar disorder, personality disorder NOS (not otherwise specified) with borderline traits, R/O PTSD severe, psychological factors affecting physical condition and R/O psychotic disorder NOS. A January 2007 VA treatment record noted that the Veteran "carrie[d] a diagnosis of bipolar disorder and PTSD." The examiner added that the Veteran was under the stress of identity theft, the separation from his girlfriend and homelessness. The Veteran reported being in combat in Vietnam in 1979; however, the examiner noted that the Vietnam War ended in May 1975. In another January 2007 VA psychiatric note, the Veteran complained that he had been experiencing an increase in his flashbacks when he saw images of the war. He reported having suicidal ideation, recently separating from his girlfriend, living in a homeless shelter and having no support system in the area. On examination, the relevant Axis I diagnoses were those of bipolar disorder, PTSD and adjustment disorder; Axis II diagnosis was borderline personality disorder per history. In a January 2008 VA mental health note, the Veteran complained of having flashbacks of "seeing his friends cut up with their heads and guts blown out." He reported seeing combat in Cambodia, Laos and China. His military duties generally included ground photo recon which consisted of taking pictures of camps, troops and drawing maps of the terrain, but he would not give more specific details because his missions were classified. On examination, the Axis I diagnoses were those of MDD (major depressive disorder), PTSD (from Cambodia/Laos), PSA (polysubstance abuse), intermittent alcoholism, and R/O cognitive disorder (malingering). There was no definite Axis II diagnosis; however, an indication of R/O borderline personality disorder was noted. In a December 2008 report of VA examination, the psychologist diagnosed, after reviewing the claims file and examination of the Veteran, Axis I disorders of anxiety disorder, NOS; mood disorder, NOS; substance dependence (alcohol, opiates, benzodiazepines) possibly in remission; the Axis II diagnosis was that of personality disorder, NOS with antisocial, borderline and narcissistic traits. The psychologist determined that it was clear that the Veteran's trauma symptoms only marginally related to the documented stressor of being attacked in service because the Veteran contended that most of his re-experiencing symptoms were related to alleged combat experiences. A January 2009 VA treatment record noted an Axis I diagnoses of bipolar disorder, history of PTSD, history of polysubstance dependence, history of prescription benzodiazepine dependence. In the March 2009 report of VA examination addendum, the psychologist concluded that the Veteran's anxiety disorder and mood disorder were less likely as not related to military service. The psychologist explained that the Veteran did not have a major psychiatric problem until 2000 when he had a breakdown while going through a divorce. In a May 2010 report of VA examination, the physician determined that the Veteran did not meet the criteria for a diagnosis of PTSD and that he was appropriately diagnosed with an anxiety disorder. The physician noted that the Veteran reported having minimal symptoms (rage and intrusive thoughts) related to the verified stressor of having been hit in the face with a pole by another Marine and explained that most of the Veteran's anxiety symptoms were related to non-verified stressors. The staff physician concluded that the Veteran's anxiety disorder was less likely than not related to verified stressors that occurred during his active service. The physician also noted that the Veteran was diagnosed with a mood disorder and concluded that the Veteran's mood disorder was not related to his active service. The physician added that the Veteran was also diagnosed with history of substance dependence (alcohol, opiates and benzodiazepines), possibly in remission and noted that the service treatment records showed that alcohol dependence (at least) was active during his military service. Given this history, the Board finds that another VA examination is necessary to determine the nature and likely etiology of the claimed innocently acquired psychiatric disorder. The Board notes that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). To this end, the Board reiterates that to warrant service connection for PTSD the evidence must establish a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. At his April 2008 hearing, the Veteran identified several other in-service stressors. The record does not indicate that the RO has made an attempt to verify these other claimed in-service stressors. Accordingly, the Veteran should be asked to submit any evidence that might tend to corroborate any of the claimed in-service stressors. A confirmed diagnosis of PTSD due to military stressors notwithstanding, the Board acknowledges the ruling in Clemons v. Shinseki, 23 Vet. App. 1 (2009) which clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. In this case, in addition to a diagnosis of PTSD, the Veteran's psychiatric condition has been variously diagnosed as bipolar disorder, major depressive disorder, mood disorder, anxiety disorder, adjustment disorder and dysthymia. The Veteran's service treatment records indicate he received psychiatric treatment in October 1979. Most recently, in the May 2010 report of VA examination, the staff physician concluded that the Veteran's anxiety disorder was less likely than not related to a verified stressor that occurred during his active military service. No rationale for this conclusion is offered. Thus, in light of Clemons, the Board finds that the VA examination must address the nature and likely etiology of any other innocently acquired psychiatric disorder that is identified on examination. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him provide the name and address of any health care provider who has treated him for his claimed psychiatric disorder since 2009. After obtaining any required releases, copies of all records from any identified treatment source should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. He should be notified of any unsuccessful effort, in order to afford him the opportunity to obtain and submit those records for VA review on his own. The Veteran also should be notified that he may submit medical evidence or treatment records in support of his claim. 2. The RO should also take all indicated action to have the Veteran submit evidence that might tend to corroborate any of his claimed stressors from service. The RO should undertake necessary action to attempt to independently verify the occurrence of the Veteran's other alleged stressors (as documented in his April 2008 Board hearing transcript). Any additional action necessary for independent verification of these stressors should be accomplished. If the search for corroborating evidence leads to negative results, the RO should notify the Veteran of this fact, explain the efforts taken, and describe further action (if any) to be taken. If it is determined that there is no reasonable action that can be taken, that too should be set forth so that the Veteran can be informed. 3. After associating with the claims file all available records and/or responses received, the RO should prepare a report detailing the occurrence of any specific in-service stressful experience(s) deemed established by the record. This report is to be added to the Veteran's claims file. If the occurrence of no other claimed in-service stressful experience(s) is verified, then the RO should so state in its report. 4. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed innocently acquired psychiatric disorder. Any indicated tests or studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the VA examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the entire record, and the examination of the Veteran, and considering any stressor deemed as verified (to include being assaulted by a fellow Marine), the VA examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has met the criteria for a diagnosis of PTSD related to a verified stressor, such as being assaulted by another Marine, or another documented event of his period of active service. The opinion should be based on the results of examination, a review of the medical evidence of record, and sound medical principles. The opinion should include a discussion of whether the claimed stressor, to include being assaulted by a fellow Marine, is sufficient to support a diagnosis of PTSD. The opinion must address the conflicting evidence of record. In addition, any other appropriate psychiatric diagnosis should be identified. If psychiatric diagnosis other than PTSD is rendered, the examiner is asked to opine as to whether it is at least as likely as not (50 percent chance or greater) that that psychiatric disorder either had its clinical onset during the Veteran's period of service or is due to an event or incident of that service. The examiner should utilize the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in arriving at diagnoses and identify all existing psychiatric diagnoses. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2011). 6. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). 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). _________________________________________________ STEPHEN L. WILKINS 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).