Citation Nr: 1314063 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-04 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disability, including posttraumatic stress disorder (PTSD), chronic anxiety, and major depressive disorder. 2. Entitlement to service connection for a headache disability. WITNESSESES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to December 1968 in the United States Navy, and from March 1995 to June 1995 in the United States Air Force. He had additional service in the Naval Reserves and Air Force Reserves. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran and spouse testified at a videoconference hearing at in January 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the claims file. At the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider the evidence not already on file. 38 C.F.R. §§ 20.800, 20.1304(a) (2012). 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. Therefore, the Board will consider any diagnosed mental disorder, including PTSD, major depressive disorder, and chronic anxiety. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Unfortunately, a remand is required in this case. 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 claims so that he is afforded every possible consideration. It appears that there may be outstanding VA treatment records. Any additional treatment records that are potentially relevant must be obtained before deciding this appeal. 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c) (2012). The Veteran has submitted mental health counseling treatment records from the San Antonio, Texas Vet Center, dated from approximately December 2010 to September 2011. At his personal hearing, he indicated ongoing PTSD treatment at the Vet Center. At the hearing, the Veteran indicated that within days after the hearing, he was to begin behavioral medicine therapy treatment at the VA South Texas Veterans Healthcare System for his claimed PTSD. He also indicated that he has received medications for his disabilities from the VAMC, including for his headaches. He then submitted a VA medication list from the VA South Texas Veterans Healthcare System, dated in October 2011. Thus, there may be other treatment records that for his claimed headaches or mental disorder at that VA facility that are still outstanding. Records generated by VA facilities that may have an impact on the adjudication of a claim are constructively in the possession of VA adjudicators, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Those records should be obtained and associated with the claims file. In the Veteran's September 2008 notice of disagreement, he reported he had both PTSD and headaches treatment over number of years with a private physician, Dr. G.S. There are private treatment records from Dr. G.S., in San Antonio, Texas, dated from December 1994 to December 2007. However, he also recently submitted a prescription slip from Dr. G.S., dated in December 2012. That raises the possibility of outstanding private medical records from Dr. G.S. On remand, the Veteran should be requested to sign the proper authorization form so that any treatment records from Dr. G.S., dated since December 2007, can be obtained. In September 2008, the Veteran stated that he had a 40 year history of recurrent, frequent headaches, dating to 1968, when he was discharged from his first period of active duty service, in the United States Navy. He testified that he was unsure of whether he had tension or migraine headaches, but had always had those headaches. A review of his medical records shows a history of headaches, but no diagnoses of any current headache disability. Similarly, his service medical records are unremarkable for any documented complaints, treatment, or diagnoses of any headache disability. The Veteran is competent as a lay person to assert that he has suffered from a history of headaches symptoms beginning since service to the present. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(a)(2) (2012). VA's duty to assist a Veteran in substantiating a claim includes providing a medical examination or obtaining a medical opinion when necessary. Therefore, the Board finds that a remand is necessary for a VA examination and opinion as to whether any current headache disability is etiologically linked to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran contends that he developed a psychiatric disability, specifically PTSD, while serving aboard the USS Manatee off the coastal waters of the Republic of Vietnam, during the Vietnam War. He testified that the USS Manatee was an oiler and refueler ship, which stayed in the Gulf of Tonkin, off the coast of Vietnam during the period of 1967-1968. He alleges he was fearful of the ship being attacked and blowing up while refueling near Vietnam, because he could witness and hear the fighting on shore in Vietnam. He stated that the sights and sounds of helicopters, weapons fire and human screams were visible and audible. The night was lighted up by explosions, tracer rounds and fires, and those sights and sounds were extreme, traumatic, and presented a very real threat. The Veteran's service separation form confirms that he was awarded the Vietnam Service Medal with two Bronze Service Stars, the Vietnam Campaign Medal and the Vietnam Defense Service Medal, but he received no awards specifically confirming combat with the enemy during service. His service personnel records document that his military occupational specialty was Boatswain's Mate while serving aboard the USS Manatee. The Veteran's service medical records are unremarkable for documented complaint, treatment, or diagnosis of any psychiatric disability, including PTSD. After service, a review of his medical records shows a psychiatric hospitalization in May 1985 at Humana Hospital in San Antonio, Texas, with a diagnosis of probable major depressive disorder episode. His private treatment records by Dr. G.S., dated in December 2005 and December 2007, show diagnoses of chronic anxiety. His Vet Center treatment records dated in 2010 and 2011 indicate recent treatment for and diagnoses of PTSD, with symptoms of depression and anxiety. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2011). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125 (2012). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1) (2012). If the Veteran did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the occurrence of the claimed stressors must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); Fossie v. West, 12 Vet. App. 1 (1998). However, if a stressor claimed by a veteran 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Fear of hostile military or terrorist activity means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2012). The Board finds a new VA examination and medical opinion is warranted to resolve the Veteran's claim, and to specifically consider 38 C.F.R. § 3.304(f)(3) (2012). Moreover, the Veteran and spouse allege a continuity of psychiatric symptomatology since service, including nervousness, anxiety, and depression. The Veteran asserts that he had a 40 years history of psychiatric problems, dating to his first period of active duty service. The spouse has stated that she has observed the Veteran having a long history of mental health problems, particularly anxiety. The lay statements are competent since they relate what has been observed and experienced by the Veteran and spouse, and those observations are within the realm of lay experience. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(a)(2) (2012). The Board finds that the Veteran needs to undergo a VA examination to determine both the nature and etiology of his claimed acquired psychiatric disability, including whether it may be due to service or any service stressor. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Ask the Veteran to complete and return necessary authorization for VA to obtain the medical treatment records from Dr. G.S. in San Antonio, Texas, since December 2007, and any other outstanding private treatment records. If he provides a completed release form authorizing VA to obtain those treatment records, attempt to obtain them with at least one follow-up request if no reply is received. 38 C.F.R. § 3.159(c)(1) (2012). 2. Obtain any outstanding, relevant VA treatment records from the VA South Texas Veterans Healthcare System and any outstanding treatment records from the San Antonio, Texas Vet Center, dated from September 2011 to the present. 3. After completing the above requested development, schedule the Veteran for a VA examination to determine the nature and etiology of any current headache disability. The examiner must review the claims file and must note that review in the report. The examiner should perform any diagnostic tests necessary. The examiner should elicit from the Veteran a complete history of his complaints of a headache disability, including any medical treatment, and should consider the Veteran's lay history. The rationale for all requested opinions should be provided. The examiner should respond to the following: a) Please identify and diagnosed any currently headache disability. b) For any headache disability found, is it at least as likely as not (50 percent probability or greater) that it had its clinical onset during the Veteran's periods of active duty service, or that it is otherwise related to the Veteran's active service? 4. After completing the above requested development, schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disability. The examination should include all necessary diagnostic testing and evaluation. The examiner must review the claims file and must note that review in the report. The rationale for all requested opinions shall be provided. The examiner should respond to the following: (a) The examiner should provide a full multi-axial diagnosis pursuant to DSM-IV and must specifically state whether or not each criterion for a diagnosis of PTSD is met. (b) If the examiner finds that a diagnosis of PTSD is warranted, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that it is attributable to any in-service stressor, and should state what stressor. (c) If the examiner finds that a diagnosis of PTSD is warranted, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) related to the Veteran's fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (c) If the examiner finds that a diagnosis of any mental disorder, other than PTSD, is warranted, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the disability had its clinical onset during the active service, or is otherwise related to the Veteran's active service? 5. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran is advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this pending claim. 38 C.F.R. § 3.655 (2012). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).