Citation Nr: 1314613 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-48 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for psychiatric disorder (claimed as posttraumatic stress disorder (PTSD) and depression). 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from September 1969 to April 1971, including service in the Republic of Vietnam from April 1970 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. With respect to the claim for service connection for hypertension, the Board notes that it has not been certified by the RO as being on appeal. However, the claim was denied in a September 2008 rating decision, a notice of disagreement was received in October 2008, a statement of the case was issued in October 2010, and that a VA Form 9 (substantive appeal) was received in November 2010. Therefore, the claim is within the Board's jurisdiction. See 38 U.S.C.A. §§ 7104, 7105. The Board notes that the RO separately adjudicated the claims for service connection for PTSD and depression; however, they have been recharacterized by the Board as a single issue on appeal to encompass all diagnoses, in light of the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms; VA should construe claim for service connection based on reasonable expectations of non-expert claimant). The Virtual VA paperless claims processing system includes electronic copies of VA treatment records dated from September 2010 to January 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is claiming that he has a psychiatric disorder that is directly related to his wartime service in the Republic of Vietnam. In the alternative, he also claims that he has a psychiatric disorder that was caused or chronically worsened by his service-connected disabilities. 38 C.F.R. 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Over the course of this appeal, the Veteran has been granted service connection for several physical disabilities, and his current combined disability rating is 90 percent. However, there is no medical opinion addressing the relationship between those service-connected disabilities and any current psychiatric disorder. Therefore, the Veteran should be afforded a VA medical examination and opinion to determine whether he has psychiatric disorder that is caused or aggravated by his service-connected physical disabilities. See 38 U.S.C.A. § 5103A(d). The Board also notes that the Veteran indicated in a January 2013 statement that he continues to receive VA treatment. The most recent VA treatment records associated with the Virtual VA file are dated in January 2011 and reflect ongoing treatment for his service-connected disabilities, as well as a nonservice-connected psychiatric disorder. Thus, upon remand, the RO/AMC should seek to obtain any additional and potentially relevant records of VA treatment not currently associated with the claims file or Virtual VA file. See 38 U.S.C.A. § 5103A(a)-(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, as the Veteran claims to experience PTSD as a result of wartime service in Vietnam, his complete official military personnel file should be sought and obtained for association with his claim file, as it may contain information relevant to the Veteran's conduct or performance during service, the hardships and circumstances of his service, and other information relevant to whether he incurred a psychiatric disorder during service. See 38 U.S.C.A. § 5103A(a)-(c). In addition, the issue of entitlement to service connection for PTSD was most recently adjudicated in an October 2010 statement of the case, yet that adjudication did not take into consideration new regulations pertaining to adjudication of claims for PTSD, as issued effective July 2010. Effective July13, 2010, VA amended its rules for adjudicating disability compensation claims for posttraumatic stress disorder (PTSD) contained at 38 C.F.R. § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. This revision adds to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. VA's specific PTSD regulation, 38 C.F.R. § 3.304(f), previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to accept the occurrence of the claimed in-service stressor. VA later amended its PTSD regulations to also accept the statements of Veterans who are former Prisoners-of-War and those with an in-service diagnosis of PTSD as sufficient to establish occurrence of an in-service stressor if they are consistent with the places, types, and circumstances of service. The primary result of the recent amendment of 38 CFR § 3.304(f) is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. See 75 Fed. Reg. 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)). The regulation amendment has no impact on PTSD claims that arise out of in-service diagnoses of PTSD or PTSD stressors experienced during combat, internment as a prisoner-of-war, or as the result of personal assault. As the Veteran has not yet been advised of the amended regulations, the RO/AMC should be provided the Veteran with the amended version of 38 C.F.R. § 3.304(f). In addition, there are two computer discs that were associated with the paper claims file subsequent to issuance of the October 2010 statement of the case in this matter. Those discs contain records from the Social Security Administration (SSA). The information appears to pertain primarily to the Veteran's psychiatric condition. Therefore, on remand, the RO/AMC should print the contents of these discs and associate the records with the claims file so as to facilitate review by VA clinicians and adjudicators, as appropriate. See 38 U.S.C.A. § 5103(a)-(c). Moreover, in a rating decision dated in April 2012, the RO granted service connection for ischemic heart disease, rated as 30 percent disabling effective from February 25, 2011. Therefore, the RO/AMC should request a medical opinion as to whether the Veteran has hypertension that is caused or chronically worsened by his service-connected disabilities, to include ischemic heart disease. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, there are medical records that appear to include diagnoses of PTSD and depression with additional relevant findings, but that are written in Spanish. Therefore, the RO/AMC should seek to obtain translations of these documents to facilitate review by VA adjudicators and clinicians. See 38 U.S.C.A. § 5103A(a)-(c). Lastly, the Board notes that the RO had previously indicated that the Veteran's service treatment records had been lost or destroyed while in the possession of VA (see October 2010 statement of the case, page 1); however, since the time of the October 2010 statement of the case, the Veteran's service treatment records (initially obtained by VA in the year 2003) have been located and associated with the claims file. The claims for service connection for psychiatric disability and hypertension must therefore be readjudicated without regard to whether new and material evidence has been received since the time of any previous denial of the claims. See 38 C.F.R. § 3.156(c) (new and material evidence-service department records). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran identify all records of VA and non-VA health care providers who have treated him for a psychiatric disorder or hypertension or for his service-connected peripheral neuropathy, diabetes mellitus, or ischemic heart disease, but that may not have been previously associated with his VA claims file. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The records sought should include all potentially relevant records of VA treatment for the period dated from January 2011 to the present. The Veteran should also be advised that, with respect to private medical evidence, he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. The RO/AMC should print the SSA records contained on two computer discs in the claims file in such a manner as will facilitate review of the evidence and information by VA examiners and adjudicators. 3. The RO/AMC should contact all necessary sources to obtain the Veteran's complete official military personnel file. 4. The RO/AMC should obtain translations for all documents written in Spanish in the claims file, to include a January 2008 certificate from Dr. C.B.A.P. (initials used to protect privacy); an October 2008 medical statement from Dr. C.B.A.P., which appears to include diagnoses of PTSD and depression; clinical notes of treatment from Dr. C.B.A.P. from September 2007 to June 2008; a July 1968 service department report of medical history at entry into service; a certificate of marriage; and, a court document of divorce. 5. Once all available relevant medical records have been received, the RO/AMC should make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA examination with an appropriate clinician. The examiner should take a complete history from the Veteran as to the nature and onset of his psychiatric symptoms and review the pertinent records. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this, with a fully reasoned explanation. The examiner should provide a diagnosis for each psychiatric disorder found upon examination. For each diagnosed condition, the examiner should indicate whether the disorder began during active service or is related to any incident of service. If the Veteran is diagnosed as having PTSD, the examiner should indicate whether the PTSD is related to the Veteran's fear of hostile military or terrorist activity during his period of wartime active service in the Republic of Vietnam from April 1970 to April 1971. If the Veteran is found to have a psychosis, the examiner should provide an opinion as to whether the psychosis was present within one year after discharge from service. For each diagnosis, the examiner should also indicate whether the disorder is caused or chronically worsened by the Veteran's service-connected disabilities, which include ischemic heart disease, type II diabetes mellitus, erectile dysfunction, and peripheral neuropathy of the upper and lower extremities. The examiner should provide a fully reasoned explanation for his or her opinions based on established medical principles and his or her clinical experience and medical expertise. 6. The RO/AMC should send the claims file to a VA examiner for the purpose of obtaining an opinion as to whether it is at least as likely as not that the Veteran's hypertension has been caused or aggravated by any service-connected disability, to include ischemic heart disease. If the VA physician indicates that examination of the Veteran is necessary to provide the requested opinion, such an examination should be scheduled. The examiner should provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 7. When the development requested has been completed, the case should be reviewed by the RO on the basis of all additional evidence associated with the claims file subsequent to issuance of an October 2010 statement of the case, including any newly received VA medical records and the Veteran's service treatment records. The readjudication should include consideration of 38 C.F.R. § 3.304(f)(3), pertaining to stressors claimed by a veteran as related to the Veteran's fear of hostile military or terrorist activity, as revised effective from July 13, 2010. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the amended version of 38 C.F.R. § 3.304(f). Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ JESSICA J. WILLS 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).