Citation Nr: 1314535 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-37 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disability to include post traumatic stress disorder (PTSD), claimed as bipolar disorder and depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to December 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a March 2009 decision, the Board denied the claim. Subsequently, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2010, the Court issued a Memorandum Decision remanding the claim for further development. In August 2011, the Board remanded the claim for development consistent with the Memorandum Decision. Thereafter, the Veteran requested a hearing before the Board. Consequently, the Board remanded the claim to afford the Veteran a hearing in October 2012. In January 2013, the Veteran presented testimony at a hearing conducted by the use of video conferencing equipment at the Philadelphia RO before the undersigned sitting in Washington, D.C. A transcript of this hearing is in the Veteran's claims folder. The claim has now returned to the Board for further review. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board concludes that additional development is necessary before a decision can be reached in this matter. Pursuant to the August 2011 remand, a February 2012 response from Lakeview Health Systems reflects that the Veteran's medical records have been destroyed. Although he was informed of such in the August 2012 supplemental statement of the case (SSOC), he was not notified in compliance with 38 C.F.R. § 3.159(e)(1) (2012). Such notice must be provided on remand. Additionally, in June 2012, VA received a letter and the Command History for 1987 for the USS Merrill from the Department of the Navy, Navy History and Heritage Command. The letter indicated that VA had requested deck logs from September 1985 to December 1987 for the USS Merrill, but stated that the amount of deck logs that were requested for reproduction was beyond the staff's capacity for a normal request. The letter asked VA to provide a date range of two months to complete the request. A notation in the Command History reflected that on March 12, 1987 "a material failure to a gasket in number two waste heat boiler control condenser caused serious chloride contamination," and "Merrill's engineers identified the cause of the casualty and made repairs within 36 hours." The Board observes that the Veteran's account of his alleged in-service stressor of being shut in a hatch by himself with water coming into the ship at a fast rate is somewhat consistent with this report in the Command History. During his hearing, the Veteran testified that he "got slammed down to a under the sea level where we were fixing a centrifugal pump. A water main busted and so our job was to plug the hole, which I when I put my hands plugged the hole, someone else was supposed to come and with---somebody else to plug it up until they cut off the turn off valve." Hearing Tr. at 4-5. The Veteran indicated that he started noticing symptoms of depression/anxiety about a "year or so after [he] got into the military." Id. at 4. The Veteran's service personnel records reflect that he was onboard the USS Merrill from July 1986 to December 1987 and assigned to Emergency Closure Isolation Detail in November 1986 and in February 1987 was on DD963 Class Sounding and Security Watch, a Fire Team Member, an Emergency Hull Repairman, and a Dewatering Team Member. Thus, it appears that the Veteran's in-service stressor (fixing a centrifuge when a water main broke and being shut in the hatch) is not only consistent with his circumstances of service (Emergency Hull Repairman, etc.), but also with the Command History report (failure to a gasket requiring repairs). The Board concludes that a request for deck logs should be made for the two month date range March to April 1987, which corresponds with the Command History report, to attempt to obtain additional information about the Veteran's in-service stressor. The Veteran testified that shortly after this incident, he "changed" and started drinking heavily. Id. at 5. A December 1987 service treatment record shows that in July 1987, the Veteran self referred to DAPA (Drug and Alcohol Program Advisor) for cocaine abuse and was screened by CAAC (Counseling and Assistance Center) in August 1987. While in the CAAC surveillance program, he tested positive twice for cocaine. It was noted that the Veteran tried marijuana in high school, but did not use any drugs until July 1987 when he was offered cocaine at a party. The Veteran reported that he tried cocaine "because it was there" and denied vegetative symptoms of depression, suicidal ideation, or homicidal ideation. The impression was history of cocaine abuse with no physical or psychological dependency. The plan was administrative separation and recommendation for Alcoholics Anonymous and Narcotics Anonymous. He was separated from service shortly thereafter. The Board notes that although the Veteran's service treatment records have been requested and associated with the claims file, it does not appear that a specific request has been made for mental hygiene or DAPA/CAAC records, which typically are not included in a request for service treatment records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section A, 1, a. As there could be outstanding relevant service records, a remand is necessary to obtain them. 38 C.F.R. § 3.159(c)(2). Further, the post-service evidence indicates that there are potentially relevant outstanding VA records. A July 2005 VA discharge summary indicates that the Veteran stated he experimented with drugs in his teenage years and it became more of a problem when he was in the Navy. He reported that he had been functioning all right for years until the last two years. It was noted that the Veteran was last in rehab in 1989 at the Coatesville VAMC. VA records from that facility during this time frame are not of record. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, a remand is necessary to obtain them. Lastly, the Board observes a January 2013 opinion from VA Dr. J. Rife-Freese. Dr. Riffe-Freese stated that the Veteran has been in psychotherapy since 2006 and has been seen by her since May 2012. His diagnoses included bipolar disorder, alcohol abuse, cocaine abuse, and generalized anxiety disorder. Dr. Rife-Freese relayed the Veteran's account of his traumatic in-service stressor and stated "based on the above information it is as likely as not that the Veteran's current symptoms are related to his military service." However, the Board finds this opinion insufficient on which to base a determination. For instance, Dr. Rife-Freese did not describe, with any detail, the Veteran's in-service stressor. Further, it is unclear if her opinion was based on consideration of the Veteran's post-service medical records, to include evidence suggesting that his acquired psychiatric disability might be related to factors other than his military service. Importantly, in an April 2011 private statement, Dr. B.S. Jawad reported that the Veteran had been his patient since 1995 and had been treated for anxiety, depression, and bipolar disorder since August 1999. VA treatment records indicate that the Veteran also grew up in a violent community and in a hostile environment, was physically and emotionally abused by his mother, witnessed his mother's abuse, had a step-father who was a heroin addict, had marital problems, and relapsed on drugs after his father's death. See VA records dated in July 2005, September 2005, May 2006, and July 2008. Also, in an August 2005 private treatment record from Dr. G.B. Luyster it was noted that the Veteran initially presented with symptoms of depression and anxiety due to an extramarital affair of seven years duration. The Veteran has not had a VA examination in connection with his claim. As there is evidence of a current disability of a psychiatric disorder other than PTSD, and an indication that the in-service event might be related to his current diagnoses, a remand is necessary. 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran pursuant to 38 C.F.R. § 3.159(e)(1) that Lakeview Health Systems indicated that his medical records have been destroyed, VA will decide the claim based on the evidence of record unless the Veteran submits the records, and the Veteran is ultimately responsible for providing the evidence. 2. Contact the Naval History and Heritage Command and request deck logs for the USS Merrill (DD 976) from March 1987 to April 1987. 3. Request the Veteran's mental hygiene records, to include counseling and DAPA/CAAC records, for his period of service from September 1985 to December 1987. 4. Obtain and associate with the Veteran's claims file VA treatment records from the Coatesville VAMC dated from 1987 to 2003, to include a request for any archived records. Also, obtain all current VA records dated from June 2012 to the present. 5. If there is an inability to obtain any of the records requested in #2-4 above, the Veteran and his representative should be notified of such in accordance with 38 C.F.R. § 3.159(e)(1). 6. After the actions in 1-5 have been completed, schedule the Veteran for a VA examination to evaluate his claim for service connection for an acquired psychiatric disability. A copy of the claims folder and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: Based on a review of the claims folder and the examination findings, including the service treatment records, private treatment reports, VA treatment reports, the examiner should render any relevant diagnoses pertaining to the claim for an acquired psychiatric disability. Additionally, the examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that all current acquired psychiatric disabilities (to include anxiety, depression, and bipolar disorder) is causally or etiologically related to his symptomatology in military service as opposed to its being more likely due to some other factor or factors. In particular, the examiner should address the relationship, if any, between the Veteran's in-service event of being shut in the hatch by himself with water rushing while he was attempting to stop a leak and any current acquired psychiatric disability. If the AOJ determines that there is sufficient evidence to corroborate the above stressor, then the VA examiner is asked to provide a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that his current PTSD (to include anxiety, depression, and bipolar disorder) is causally or etiologically related to the corroborated stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A thorough explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. When the development requested has been completed, readjudicate the issue on appeal, considering all relevant evidence of record. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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).