Citation Nr: 1312012 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-48 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disability, claimed as anxiety, depression, posttraumatic stress disorder, and alcoholism. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty for training from April 1988 to August 1988 and on active duty from July 1992 to June 2000. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia, in which the RO, in pertinent part, reconsidered the claim of entitlement to service connection for a mental health condition (a psychiatric disorder herein), as pertinent existing service department records that were not previously associated with the Veteran's claim were associated with the record in August 2009. See 38 C.F.R. § 3.156(c) (2012). The Veteran was scheduled for a videoconference hearing before the Board in November 2012, however, he failed to appear or request to reschedule such hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. REMAND The Veteran contends that his current psychiatric disorders, namely bipolar disorder, major depressive disorder, and posttraumatic stress disorder (PTSD), are etiologically related to his extended period of active duty. Specifically, he asserted that his military occupational specialty (MOS) as a medic serving in South Korea involved supporting soldiers who were seriously injured during a training exercise at Camp Casey, which he believes is the primary contributing factor to his current disorders. In this regard, the Veteran stated that in 1993, he was assigned to the 1st Battalion, 172nd Armored Brigade, when he witnessed a tank turret rotate and sever a soldier at the waist as the soldier attempted to exit the driver's hatch. The Veteran stated that in response, he pulled the soldier out of the tank and performed CPR; however, the soldier died on the tank. Service treatment records for the Veteran's period of active duty for training are negative for evidence of a psychiatric disorder. Service treatment records for the Veteran's period of active duty, to include his October 1992 induction physical examination report and his March 2000 separation examination report, also are negative for evidence of a psychiatric disorder. Following separation from active service, a March 2002 letter from the Veteran's private psychologist, Y.P., shows the Veteran sought treatment for major depression and alcohol abuse since December 2001. Y.P. reported that the Veteran's symptoms of depression and related alcohol abuse had been present since his discharge from service in 2000. In March 2003, the Veteran underwent a VA examination, during which he reported significant problems with depression and alcohol abuse during service. Upon examination, the examiner diagnosed mild to moderate major depressive disorder and alcohol abuse. The examiner opined that based upon the Veteran's history, it sounded like the Veteran had some depression. The examiner further indicated that he suspected that the Veteran may not have suffered from depression if it were not for his recurring drinking problems; however, he explained that it was hard to separate the two issues. VA clinical records dated in April 2008 show diagnoses of depressive disorder. In a January 2009 letter, the Veteran's private physician, D.M., M.D., reported that the Veteran had been under his care for bipolar disorder since May 2007. D.M. reported that the Veteran served in the military from 1992 to 2000 and was stationed overseas for long periods of time. D.M. reported that the Veteran's service included exposure to severely and fatally injured soldiers. D.M. stated that he was not aware of any history of mood instability that suggested symptoms of bipolar disorder prior to the Veteran's service. D.M. opined that, "the onset of his bipolar disorder and depression are directly related to his military service." In November 2009, the Veteran underwent a VA examination, during which he reported that he was currently undergoing individual therapy from his private physician. Upon examination, the examiner diagnosed bipolar disorder with mixed psychotic features. The examiner opined that the Veteran's bipolar disorder was not caused by his service as a combat medic, and was not due to his service-connected disabilities. In providing this opinion, the examiner indicated that the Veteran's disorder was genetically transmitted by his parents to him from the time of conception, as his mother suffered from mood swings, and his father suffered from PTSD due to his service in Vietnam, as well as bipolar disorder. The examiner further noted the Veteran's infractions for alcohol abuse during service, which he stated was not uncommon during both phases of the Veteran's illness. To date, the examinations of record are inadequate for purposes of determining whether service connection is warranted for the Veteran's claimed psychiatric disorders. Specifically, the January 2009 private physician based his opinion on the Veteran's reported history, and failed to review the Veteran's claims files, to include his service treatment records. The March 2003 VA examiner could not determine whether the Veteran's depression was a result of his alcohol abuse or his alcohol abuse was a result of his depression. The November 2009 VA examiner failed to consider the Veteran's history of depression during service, to include whether his bipolar disorder had its onset during service, nor did he consider the January 2009 private opinion contained within the claims files, in which the Veteran's private physician related his current bipolar disorder and depression to his service. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a new medical examination and opinion are necessary. Prior to affording the Veteran a VA psychiatric examination, the originating agency must forward a summary of the Veteran's claimed stressors, discussed in detail above, to the U.S. Joint Services Records Research Center (JSRRC) for corroboration. Finally, the most recent outpatient record is dated in January 2009; however, during the November 2009 VA examination, the Veteran reported that he received ongoing treatment from his private provider. On remand, VA must attempt to obtain any private treatment records from Psychiatric Associates of North Carolina, from January 2009 to the present. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) for the following actions: 1. The RO or the AMC must obtain any pertinent records adequately identified by the Veteran, including any outstanding medical records from the Veteran's private provider, Psychiatric Associates of North Carolina. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record, and the Veteran and his representative so notified. 2. The RO or the AMC must prepare a summary of all claimed stressors. The summary should be sent to the JSRRC, which should be requested to make an attempt to verify events related to the Veteran's claimed stressors. The JSRRC should be informed that the time frame for the alleged stressors is from October 1992 to December 1993. If unable to provide such information, the JSRRC should be asked to identify the agency or department that may provide such information and follow-up inquiries should be conducted accordingly. 3. Then, the RO or the AMC should arrange for the Veteran to be examined by a VA psychiatrist or psychologist determine the etiology of all acquired psychiatric disorders present during the period of the claim. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated evaluations, studies, and tests deemed to be necessary should be accomplished. The RO or the AMC is to provide the examiner with a list of confirmed stressors, if any. Based upon the examination results and the review of the Veteran's pertinent medical history, the 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 PTSD related to a confirmed event in service. If the Veteran is found to have PTSD in accordance with DSM-IV criteria, the examiner should specify the stressor(s) upon which the diagnosis is based. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. For each additional acquired psychiatric disorder present during the period of this claim, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder originated during service, or is otherwise etiologically related to service, or was caused or permanently worsened by a service-connected disability. The rationale for all opinions expressed must be provided. If any required opinion cannot be provided, the examiner should explain why. 4. The RO or the AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 5. The RO or the AMC should also undertake any other development it determines to be warranted. 6. Then, the claim must be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or the AMC should issue to the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims files are returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).