Citation Nr: 1313291 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-42 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a chronic acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression. ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran had active military service from August 1969 to August 1971. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case has since been transferred to the RO in Nashville, Tennessee. The Veteran has received various psychiatric diagnoses, including PTSD, affective disorder, and depression. The Board, therefore, is required to consider all of these diagnoses when deciding his appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.) The claim requires further development before being decided, therefore, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the additional delay that will result from this remand, it is necessary to ensure there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran, who is unrepresented, alleges that he has depression secondary to his service connected disabilities to include diabetes mellitus and a right thumb disability. In reporting his medical history to VA examiners, he has described incidents in service that implies a stressor for the purpose of establishing PTSD. Still further, a QTC examiner has indicated that the Veteran had a psychiatric disorder prior to military service. In light of the different theories of service connection that have been raised during this appeal, further development is necessary. A preliminary review of the service treatment records (STRs) reveals the Veteran was considered psychiatrically normal during his April 1969 enlistment examination. There is no evidence of psychiatric treatment during service. His mental status was again considered normal on the July 1971 examination that was conducted the month prior to his separation from service. Post service VA outpatient records show that in May 2006, the Veteran sought to establish VA medical care at Fayetteville, Arkansas facility. He reported a prior history of depression. The VA examiner posted an Axis I diagnosis of depression. He was prescribed psychotropic medication. In November 2006, the Veteran again sought treatment for depression at the Murfreesboro, Tennessee VA facility. He reported that he had been on Prozac for 2 years. The diagnosis was affective disorder. Since then he has been receiving medical care for his variously diagnosed psychiatric disorder including affective disorder, major depression, and depression with PTSD features. A QTC examination was conducted in September 2009. A doctor of osteopathic medicine diagnosed depression. However, she concluded that the Veteran did not have depression secondary to his service connected diabetes mellitus and right thumb disability. In an addendum submitted later that month, the examiner provided her rationale for this conclusion. She noted that the Veteran began drinking at the age of 16, prior to his entry into the military. She indicated that he acknowledged that he was also jailed on several occasions. Therefore, she concluded that his psychiatric disorder predated service. She also noted that he was in Vietnam for only 5 days and he did not see combat. While she concluded that his psychiatric disorder was unrelated to his military service, this examiner failed to provide any data or state her basis for determining (besides the Veteran's statements) that there was a pre-existing psychiatric disorder. Consequently, the Board is unable to find any probative value in this conclusion. The record also contains an August 2010 statement from a VA nurse who stated that the Veteran has been under her care for depression with features of PTSD, since September 2009. She indicated that his psychiatric disorder is related to his traumatic experiences that occurred during combat in Vietnam. Significantly, as noted above, the Veteran has acknowledged that he was not involved in combat. Therefore, this opinion is based on a false premise and has no probative value. A VA examination was conducted in February 2013. In reporting his stressors, the Veteran reported that during his 5 day stay in Vietnam, he was involved in an altercation where he cut his hand on a beer bottle. He sought treatment at a medical dispensary. Afterwards, he had to walk over 2 miles back from the medical dispensary and was afraid of becoming a prisoner of war. The VA examiner found his reported stressor met the criteria for PTSD. However, he also noted that the stressor was not related his fear of hostile military or terrorist activity. The psychologist found that his psychiatric manifestations were consistent with a diagnosis of major depression. The Board also finds that this examination is inadequate. First, the examiner did not comment on the etiology of his depression, including whether he has depression secondary to his service connected disabilities. Further, he did not reconcile the prior psychiatric diagnoses, of record. Secondly, while the STRs show that he received medical care for a laceration of the right thumb, there is no reference to a prior altercation. And, the incident was considered to have occurred under non-hostile circumstances. Furthermore, at prior examinations, the Veteran gave different accounts of this incident. As such, the Veteran's credibility has been compromised by his inconsistent statements. As with the VA nurse's opinion, the conclusions of this VA psychologist are based on an unreliable premise. As such, it is of limited probative value. VA regulations provide that where "diagnosis is not supported by the findings on the examination report, or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996). For these reasons, VA examination and opinion are needed. In this regard, as the Veteran seemingly acknowledged to a QTC examiner in September 2009 that he had experienced mental health related issues prior to service; questions remain concerning the state of his mental health when entering service. A Veteran is presumed in sound mental health when entering the military, except for conditions noted during his enlistment examination. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Absent this notation, to rebut this presumption of soundness at service entrance, there must be clear and unmistakable evidence both that he had a pre-existing psychiatric disorder and that it was not aggravated during his service beyond its natural progression. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 38 C.F.R. § 3.303(c), however, indicates that in regards to disabilities first noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary. Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof. So additional medical comment is needed to assist in determining whether the Veteran clearly and unmistakably had a psychiatric disorder prior to beginning his military service and, if he did, whether it included any of the conditions that have been diagnosed during the years since. And if it is determined he clearly and unmistakably had a pre-existing psychiatric disorder, further medical comment also is needed concerning whether his military service chronically, meaning permanently, aggravated this pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If, on the other hand, this two-part test is not met, medical comment still is needed concerning the etiology of any current psychiatric disorder in terms of the likelihood (very likely, as likely as not, or unlikely) it is related to his military service or dates back to his service. Moreover, a more definitive opinion is needed regarding whether his service connected disabilities have caused or aggravated his diagnosed psychiatric disorders. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999) (all indicating that supporting medical nexus evidence generally is required to associate a claimed condition with a service-connected disability). In regard to PTSD, the Veteran claims that he was involved in an altercation during his 5 days in Vietnam. While it appears that the Veteran is reporting an in-service stressor, these statements have been vague and do not offer very much in terms of details. The Veteran should submit a stressor statement with sufficient details to allow the AMC/RO an opportunity to further develop the claim. This should include efforts to corroborate the occurrence of any claimed stressors and obtaining the Veteran's entire OMPF, which is not presently associated with his claims file. Finally, as noted above, prior to establishing VA treatment in 2006, the Veteran reported a prior history of treatment for depression. The Veteran should identify the medical provider that treated him for his depression prior to 2006. The AMC should assist the Veteran in obtaining these records. As well, the AMC should update any records regarding VA treatment since 2009. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter informing him about the information and evidence not of record that is necessary to substantiate a claim for service connection for PTSD; (2) that VA will seek to obtain; and (3) that he is expected to provide. 2. Contact the appropriate service department and/or records custodian, including the National Personnel Records Center (NPRC), and request copies of the Veteran's complete military personnel file. 3. Also send the Veteran a letter asking that he clarify what he believes caused his PTSD. In particular, the RO should request the Veteran to provide as much detailed information as possible concerning the circumstances of his alleged PTSD stressors, to include the approximate dates, places, and identifying information concerning any other individuals involved in the events, including their full names, rank, units of assignment, or any other identifying detail. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then notify the Veteran of this in accordance with 38 C.F.R. § 3.159(c) and (e). 4. Then prepare a summary of all claimed PTSD stressors. If they require independent verification, the summary and all associated documents should be sent to the Joint Services Records Research Center (JSRRC), National Archives and Records Administration (NARA), and/or other record custodian to attempt to corroborate the claimed events. 5. Also obtain all outstanding evaluation or treatment records. To this end, give the Veteran an opportunity to identify any mental healthcare provider that has treated him for his psychiatric disability prior to 2006 and since 2009, regardless of the particular diagnosis. If, after making as many requests as are necessary to obtain any pertinent records, it is determined the records sought do not exist or that further efforts to obtain them would be futile, prepare a Formal Finding on the Unavailability of Records Memorandum consistent with 38 C.F.R. § 3.159(e)(1). 6. Then schedule another VA compensation examination. The examiner should try and reconcile the prior diagnoses and, must additionally comment on the etiology of these other diagnoses, both in terms of whether they are directly or secondarily related as proximately due to, the result of, or chronically aggravated by his service-connected disabilities. a) For each psychiatric disorder diagnosed either currently or in years past, the examiner must indicate whether it clearly and unmistakably preexisted the Veteran's military service and whether it also clearly and unmistakably was not aggravated during or by his service beyond its natural progression. If, instead, this two-part test is not met, then an opinion is needed concerning the likelihood (very likely, as likely as not, or unlikely) that any current psychiatric disorder alternatively is directly or presumptively related to the Veteran's military service, b) Regarding secondary service connection, have the VA examiner comment on whether the service-connected diabetes mellitus and/or thumb disability, have caused, or, if not, have alternatively aggravated the Veteran's psychiatric disorder.* *Aggravation is defined as a chronic worsening of the underlying disability versus a temporary flare-up of symptoms. It represents a permanent increase in severity, beyond its natural progression. If the examiner determines there has been aggravation, to the extent possible, he/she should try and determine the extent of this aggravation by comparing the baseline of the diagnosed psychiatric disorder versus the amount and extent the Veteran now has. c) Finally, determine whether the Veteran has PTSD under the criteria set forth in the DSM-IV. In providing this opinion, the examiner should acknowledge the diagnosis of depression with PTSD features offered by the VA nurse in August 2010. If PTSD is found, the examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that the PTSD is related to any in-service stressor. All diagnostic testing and evaluation needed to make these important determinations should be performed. It is imperative the designated examiner review the claims file, including a complete copy of this remand, for the pertinent medical and other history. *The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 7. Then readjudicate this claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ KELLI A. KORDICH Acting 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).