Citation Nr: 1314534 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-21 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to October 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in July 2009, a statement of the case was issued in April 2010, and a substantive appeal was timely received in May 2010. The Board remanded the appeal in November 2012 to allow the Veteran an opportunity for a hearing. The Veteran testified before the undersigned via video-teleconference from the RO in January 2013. The record was held open for 60 days to allow for the submission of evidence; however, no additional evidence was received. A transcript has been incorporated into the record. The Board has entitled the Veteran's appeal as given on the title page to acknowledge that the scope of a disability claim includes any disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record (see Clemons v. Shinseki, 23 Vet. App. 1 (2009)), as the evidence of record included psychiatric diagnoses other than the Veteran's claimed PTSD. Accordingly, the Board recharacterized the pertinent issue on appeal as a claim for service connection for an acquired psychiatric disability, to include PTSD. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Upon a complete review of the claims file and after the Veteran's testimony at hearing before the undersigned, the Board finds that further development of this appeal is warranted. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Cf. 38 C.F.R. § 3.304(f)(3) (2012) ("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 posttraumatic stress disorder 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."). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The record reflects that the Veteran has been assessed currently by VA clinicians both with PTSD, and with an anxiety disorder, rule/out PTSD. Therefore, the evidence establishes current acquired psychiatric diagnoses of record. Regarding the stressful event, he has reported to VA, to include clinicians, that he witnessed an accident while serving on board the USS America during its Mediterranean cruise for six months in 1971 (July to December 1971). He reported that a fellow sailor, likewise engaged in fueling operations, was blown off the deck by the blast from a jet engine and died. The Veteran testified that this event probably occurred in the fall months of 1971. Personnel records reflect that the Veteran was assigned to the USS America from January 1971 until his separation from service in October 1972. While the Veteran has not responded to requests for more specific information about this stressor, and the RO reached a formal finding of a lack of information to verify stressor in October 2008. However, the Board finds that the information previously supplied by the Veteran is sufficient to undertake reasonable efforts to attempt to verify the stressor event. Therefore, on remand, the Board finds that additional development is necessary, as will be described below. The report of the Veteran's July 1970 service entrance examination reveals a normal psychiatric evaluation. His physical profile was all "1" (normal) in all categories. Service treatment records indicate the Veteran was assessed during outpatient and inpatient treatment in 1972 with a variety of acquired psychiatric disorders, that included an acute anxiety reaction, marked anxiety reaction, acute situational adjustment, and with a personality disorder. Congenital and developmental defects are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2012). VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Further, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and, if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. To allow for proper legal analysis of a veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the veteran's condition is a congenital or developmental "disease" or "defect." Id.; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). While the Veteran has had current clinical evaluations, the Veteran failed to report for a June 2011 scheduled VA mental disorders examination. Nonetheless, as the Veteran was treated and assessed with acquired psychiatric disorders in service, and has been currently assessed with acquired psychiatric disorders, another VA mental disorders examination should be afforded to the Veteran, again. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the Veteran must be very clearly advised of 38 C.F.R. § 3.655, which states that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination, and a claimant without good cause fails to report for such examination, in an original compensation claim, the claim shall be rated based on the evidence of record. Finally, the Veteran testified before the undersigned in that he had an upcoming January 2013 appointment with a VA clinician regarding his mental health. The most recent VA treatment report from the Philadelphia VA medical facility is dated in March 2011. Current VA treatment records must be obtained and included in the claims file. As well, in the record the Veteran has reported he was released from a four-year incarceration in July 2010 and both reported in September 2010 that his last psychiatric consultation took place while he was incarcerated in a Georgia state prison and in November 2010 that he was never treated for his psychiatric symptoms while incarcerated. The Board acknowledges that in August 2008 the RO mailed a request for treatment records to a county jail facility; however that request pertained to another claimed disorder and the state facility was not the one later named by the Veteran as the place of incarceration. The Veteran should be requested to provide that name of the incarceration facility where he was treated for psychiatric disorder symptoms and every effort should be made to request and obtain any private treatment records. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's treatment records from the East Orange (NJ) and the Philadelphia VA Health Care System for the period from March 2011 to present. If any of the records are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Contact the Veteran and request that he identify the state prison facility in which he was treated or underwent a psychiatric evaluation prior to his release from incarceration in the state of Georgia in July 2010. Request that he complete a VA Form 21-4142 to allow VA to obtain these records. If any of the records are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. Request from the Veteran a comprehensive statement containing as much detail as possible regarding his reported stressor to include the date the incident occurred. Advise the Veteran to provide as close as possible a 60-day window regarding the date of the claimed event and any other identifying information concerning any other individual involved in the event, including that person's name, rank, and unit of assignment or any other identifying detail. Further advise the Veteran that this information is vitally necessary to obtain supportive evidence of the stressful event he claims to have experienced, and he must be asked to be as specific as possible because, without such details, an adequate search for verifying information cannot be conducted. The Veteran must also be advised to submit any verifying information that he can regarding the stressor he claims to have experienced in service, such as statements of fellow service members. 3. Regardless of the Veteran's response, prepare a summary of the claimed stressor for which sufficient information has been provided, specifically that the Veteran was assigned to the USS America during its 1971 cruise in the Mediterranean (July 1971 to December 1971), that the Veteran (primary specialty 6410) was assigned to the V-4 Fuels Division, and that he witnessed a fellow sailor, also engaged in refueling, being blown off the deck by a jet blast such that the sailor blown overboard died. Send this summary and the information of record regarding the Veteran's service, including copies of any records relevant to verifying his claimed stressors to the United States Navy or JSRRC, or any other appropriate federal authority, and must ask to provide any available information that might corroborate the Veteran's claimed stressor to include requesting deck logs from the Modern Military Branch, National Archives, 8601 Adelphi Road, College Park MD 20740. Make as many attempts as necessary to cover the time period identified by the Veteran. Any negative replies and all documentation received must be associated with the claims file. 4. After completing the above steps 1-3, afford the Veteran a VA psychiatric examination to determine the diagnosis and etiology of any found psychiatric disorders. The claims file and any available records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner is asked specify the dates encompassed by the Virtual VA records that were reviewed, if any. All studies, tests, and evaluations deemed necessary by the examiner must be performed. Provide the examiner with a summary of any corroborated stressors, and the examiner must be instructed that only this or these events may be considered for the purpose of determining whether exposure to a stressor has resulted in any current psychiatric disorder found. The examiner must integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the Veteran's psychiatric status. Based on a review of the evidence of record, the examination findings, and with consideration of the Veteran's statements, the examiner must render a diagnosis for any acquired psychiatric disorder found. Regarding the current diagnosis of PTSD of record, the examiner must specify (1) whether any alleged stressor found to be established by the record was sufficient to produce such PTSD; and (2) whether there is a link between the current symptomatology and the in-service stressor found to be established by the record and found sufficient to produce PTSD by the examiner. For any mental disorder (such as anxiety disorder, NOS), other than PTSD, the examiner must opine whether it is at least as likely as not (50/50 probability) that such mental disorder is causally or etiologically related to the Veteran's military service, to include as due to any event or injury during service. Is there a mental disorder that is superimposed on a personality disorder? If so, is at least as likely as not (50/50 probability) causally or etiologically related to service? All opinions requested above must be accompanied by a thorough explanation. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. 5. Notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After any requested examination has been completed, review the examination report to ensure that it is in complete compliance with the directives of this Remand. The examination report must be returned to the examiner if it is deficient in any manner and corrective procedures should be implemented. 7. Ensure that the development above has been completed in accordance with the remand orders, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim considering all relevant evidence of record. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran, and his representative should he appoint one. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Paul Sorisio 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).