Citation Nr: 1313151 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 03-08 449A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Peter J. Sebekos, Attorney ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from May 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied service connection for PTSD. The Veteran appealed this denial to the Board which remanded for further development in August 2004, before deciding in a May 2006 decision that service connection was not warranted. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2009 Order, the CAVC dismissed the appeal for being untimely. The Veteran appealed this dismissal to the United States Court of Appeals for the Federal Circuit, which in a May 2011 Order, vacated the CAVC's October 2009 Order and remanded the appeal. In an April 2012 Order, the CAVC granted a Joint Motion for Remand (JMR) by the Veteran's attorney and the VA General Counsel (hereinafter "the parties") and vacated and remanded the Board's May 2006 decision for further development. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant, if further action is required. REMAND Unfortunately, a further remand is required for the issue of entitlement to an acquired psychiatric disorder, to include PTSD. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The parties conclude in the JMR that the Board's previous statement of reasons and bases for denying the Veteran's claim was inadequate because the Board (1) effectively limited its consideration to PTSD rather than any psychiatric diagnosis reasonably encompassed by the service connection claim and (2) failed to articulate adequate bases and reasons for a factual determination that the Veteran was not a combat veteran entitled to the lower evidentiary burdens afforded by 38 U.S.C.A. § 1154(b) (2012). Several years after the Board's denial of the Veteran's claim in May 2006, the Court decided 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the RO adjudicated a claim for service connection for PTSD, information in the claims file shows that the Veteran has also been diagnosed with a number of psychiatric disorders, including depression and paranoid schizophrenia. Accordingly, the JMR has recharacterized the claim for PTSD more generally to include other psychiatric disabilities. Therefore, based on Clemons and the JMR, on remand the RO should schedule the Veteran for a new VA mental examination in order to determine whether any diagnosed psychiatric disorder, whether PTSD, a depressive disorder, a psychotic disorder, or paranoid schizophrenia, is related to the Veteran's period of active duty. Before that examination is scheduled, however, the RO should associate with the claims file copies of his service personnel records in order to determine whether the Veteran may be considered a combat veteran for purposes of Section 1154(b). The Board's review of the claims file shows that the Veteran's service personnel records have never been associated with the file. In addition, the March 2013 statement of the Veteran's attorney relies on the Marine Corps's U.S. Marines in Vietnam: The Bitter End 1973-1975 to show that the Veteran's unit (1st Battalion, 4th Marines, Company B) was assigned to support evacuation efforts from Da Nang in March 1975, watched the South Vietnamese naval base at Cam Ranh Bay fall to the North Vietnamese Army in April 1975, and was deployed to provide security aboard the SS Pioneer Contender in April 1975 as that private vessel ferried an estimated 16,000 refugees to safety. The Veteran's attorney argues that this mission was dangerous and threatening and that the Veteran should be considered as participating in combat. The Board also notes that the service department reported in June 2002 that the Veteran served in Vietnam from April 2, 1975 to April 18, 1975. Further, footnote 3 of the JMR and a CD provided by the Marine Corps in October 2005 suggested that the Veteran not only participated in the evacuation of refugees from South Vietnam in April 1975, but also participated in the recovery of the SS Mayaguez off Cambodia later in 1975 and in Operation Frequent Wind, or the U.S. evacuation of the last personnel from Saigon in the closing hours of the Vietnam War. Obtaining the Veteran's service personnel records should permit the RO then to confirm whether the Veteran or his unit was involved in any of these incidents at the close of the war. The Board also notes that the CD furnished by the Marine Corps was previously damaged, as noted in footnote 3 of the JMR. Indeed, it crumbled and broke when a Board attorney attempted to access its files in April 2013. Therefore, on remand the RO should request the Marine Corps to furnish a replacement copy of its compact disc which contained unit records and after-action reports from the 1st Battalion, 4th Marines, in April and May 1975. The Board notes that during the course of this appeal, the criteria for service connection for PTSD, and, specifically corroboration of PTSD stressors, have changed. This amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor is related to the Veteran's fear of "hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. The amendment acknowledges the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. The amended criteria is for application for claims that were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010, as in this case. See 75 Fed. Reg. 39843 (July 13, 2010). The Board notes that entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) of VA regulations, that is, a diagnosis which meets the criteria in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence between current symptomatology and the claimed in-service stressor. If the claimed stressor is related to combat, service department evidence that the Veteran engaged in combat or that the Veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). The parties in the JMR cited case law to the effect that the mere absence of awards or decorations that would confirm engagement in combat, as in the Veteran's case, does not preclude a finding that the claimant engaged in combat and the Board erred to the extent that it relied on the absence of awards to conclude that the claimant did not participate in combat. See Daye v. Nicholson, 20 Vet. App. 512, 517 (2006). According to information in the claims file, the Veteran has advanced several stressors in service, including: (1) being involved in a confrontation with a Soviet naval vessel while training aboard a U.S. Navy ship in the South China Sea in April 1975; (2) taking evasive action when refugees aboard the Pioneer Contender threw something aboard the naval vessel on which the Veteran was serving (the Veteran and his comrades thought the item was a grenade); (3) having a .45-caliber pistol pointed at his head by a refugee aboard the Pioneer Contender; (4) being berated for bringing a non-critical casualty to the aid station where staff were treating another refugee for a gunshot wound to the leg; and (5) watching as desperate refugees abandoned the Pioneer Contender in the South China Sea before being devoured by sharks as the Veteran and his Marine comrades stood by, helpless to assist. While the claim on appeal was previously denied without resolving the question of a verified stressor, the Board notes that the Veteran and his attorney have claimed that he feared for his life as a result of his duty evacuating refugees, including former armed South Vietnamese military personnel, on the Pioneer Contender. Assuming this to be the case, the new PTSD regulations would affect any questions regarding the corroboration of the Veteran's claimed stressors. The Veteran's service personnel records will no doubt confirm his service in and near Vietnam in the spring of 1975. If they do, the revisions to 38 C.F.R. § 3.303(f), cited above, apply to this case. However, the question arises as to whether the Veteran meets the diagnostic criteria for PTSD to warrant service connection. The new PTSD regulations allow for service connection in instances of claimed fear of hostile military activities only where a PTSD diagnosis has been rendered by a VA or VA contracted psychiatrist or psychologist, and the claimed stressors are confirmed as being adequate to support the diagnosis. To date, the Veteran was afforded a VA mental examination in December 2005, which the parties in the JMR have found not to be adequate in adjudicating this claim. As such, the Board finds that on remand a VA examination and medical opinion should be obtained regarding whether the Veteran's claimed in-service stressors are adequate to support a diagnosis of PTSD or whether any other diagnosed psychiatric disorder is related to his period of active duty. The VA examiner should also comment on whether his or her opinion agrees or disagrees with a private psychiatric report that the Veteran's attorney said in March 2013 he will soon submit to VA. The Board also notes that in August 2003, the RO received from the Veteran a copy of a Notice of Award from the Social Security Administration (SSA). The Notice of Award, dated in July 2003, notified the Veteran that he was entitled to SSA disability benefits beginning in May 2003 for a disability that began in November 2002. However, there is no indication that the RO ever attempted to obtain the Veteran's SSA medical file. Nowhere in the claims file is there any indication of the reason for such an award, although his February 2003 claim for a nonservice-connected pension suggests that he was receiving disability benefits for paranoid schizophrenia. Medical records associated with the SSA may be relevant to the question of whether any acquired psychiatric disorder, such as PTSD or paranoid schizophrenia, is related to service. The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation, see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that the legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records). However, this is a case in which that possibility cannot be excluded. As there is a reasonable possibility that the SSA records could help the Veteran substantiate his claim on appeal, the duty to assist requires VA to attempt to obtain these records. Therefore, on remand the RO shall attempt to obtain a complete copy of the Veteran's SSA medical file. The Board also notes that information in the claims file indicates that the Veteran was on short-term disability from his last employer, Mail-Well Envelope Corporation, from December 2002 to June 2003, underwritten through the Continental Casualty Company with services provided by CNA Group Life Assurance Company. As above, the Board cannot determine the reason for such an award, although his February 2003 claim for a nonservice-connected pension suggests that he was receiving disability benefits for paranoid schizophrenia. He also filed this claim for service connection for PTSD in March 2002. Medical records associated with this private short-term disability payment program may, as in the case with Social Security, be relevant to the question of whether any acquired psychiatric disorder, such as PTSD or paranoid schizophrenia, is related to service. Therefore, on remand the RO must attempt to obtain these documents to associate with the claims file. The Board notes that its August 2004 remand had requested that the RO should follow any applicable regulations and directives implementing the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) as to notice and development. Since that remand, however, the Court's decision in Dingess-Hartman v. Nicholson, 19 Vet. App. 473 (2006), has required that a claimant for service connection receive notice of all five elements of such a claim, including the degree of disability and the effective date. As the Veteran was provided VCAA notice before the Dingess-Hartman decision, on remand the RO should ensure that the Veteran receives proper VCAA notice regarding his service connection claim. On remand, the RO also should obtain and associate with the claims file all outstanding VA medical records related to the Veteran's claim for service connection for an acquired psychiatric disorder. The Board notes that the claims file contains a December 2005 VA mental examination and opinion and some private medical records; there are no VA clinical records dated after November 2002. Therefore, any additional VA medical records should be obtained, especially any concerned with the Veteran's mental health. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO shall provide the Veteran with appropriate notice, pursuant to the VCAA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the requirements for establishing service connection for an acquired psychiatric disorder, to include disability ratings and effective dates, pursuant to Dingess-Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Take appropriate steps to associate with the claims file all of the Veteran's service personnel records from the National Personnel Records Center, the service department, or from any other appropriate source. 3. Contact the Headquarters, United States Marine Corps, Personnel Management Support Branch (MMSB), 2008 Elliot Road, Quantico, Virginia, Zip Code 22134, to obtain a replacement copy of the compact disc (CD) furnished in October 2005 but now destroyed regarding the unit history and after-action reports of the 1st Battalion, 4th Marines, in the April and May 1975 time period at the end of the Vietnam War in Southeast Asia. Then, these service personnel records, the CD, the Veteran's statements, and service histories should be consulted in determining whether the Veteran may be considered a combat veteran for purposes of 38 U.S.C.A. § 1154(b), to include whether, as noted in footnote 3 of the JMR, this Veteran ever participated in the recovery of the SS Mayaguez off Cambodia in May 1975 or Operation Frequent Wind, the U.S. evacuation of the last personnel from Saigon in the closing hours of the Vietnam War, as well as his acknowledged participation in the April 1975 evacuation of refugees from South Vietnam. 4. Contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding his application for SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 5. Contact the Mail-Well Envelope Corporation, or the Continental Casualty Company, or the CNA Group Life Assurance Company, as appropriate, and obtain and associate with the claims file copies of the Veteran's records regarding his application for and receipt of short-term disability benefits in 2002 and 2003, including any administrative decisions and the medical records upon which the decisions were based. 6. Contact the Veteran and his attorney and ask them to specify all private and VA medical care providers who have, since service, treated him for any psychiatric complaint and whose records have not been associated with the claims file. After the Veteran has signed the appropriate releases, attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from the Cleveland VAMC for the period from November 2002 to the present. All attempts to procure records should be documented in the file. If the records identified by the Veteran and his attorney cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his attorney are to be notified of unsuccessful efforts, to allow the Veteran the opportunity to obtain and submit the records. 7. After the development requested above has been completed, the RO shall schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the nature and likely etiology of the claimed PTSD or any diagnosed psychiatric disorder. The entire claims file, including a copy of this Remand, must be made available to the examiner for review. All tests deemed necessary by the examiner should be undertaken. Based on the examination and record review, the examiner should provide an opinion as to the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed stressors, such as rescuing refugees off the coast of Vietnam in April 1975 aboard the SS Pioneer Contender, are adequate to support a diagnosis of PTSD, and are his current symptoms related to the claimed stressors? If the examiner does not diagnose PTSD, the examiner should explain why the Veteran does not meet the criteria for a diagnosis of PTSD. (b) The examiner is also asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has a psychiatric disorder other than PTSD, such as depression or paranoid schizophrenia, that was incurred during his active service or is otherwise etiologically related thereto. The VA examiner should also comment on whether and why his or her opinion agrees or disagrees with a private psychiatric report that the Veteran's attorney said in March 2013 he will soon submit to VA. A rationale for all requested opinions shall be provided. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 8. Thereafter, the RO shall readjudicate the Veteran's claim with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this Remand. If the decision with respect to the claim remains adverse to the Veteran, he and his attorney should be furnished a Supplemental Statement of the Case and afforded an appropriate period of time within which to respond thereto. The appellant 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). _________________________________________________ F. JUDGE FLOWERS 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).