Citation Nr: 1314669 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-11 000 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active service from September 1985 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and April 2007 decisions by the RO which denied the benefits sought on appeal. A hearing before the undersigned Acting Veterans Law Judge was held at the RO in April 2011. The Board promulgated a decision denying the benefit sought in September 2011. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims. In a March 2012 Order, the Court approved a joint motion for remand filed by both parties to the case, vacated and remanded the appeal to the Board for further action consistent with the joint motion for remand. It is noted that the Veteran has officially changed her name, and is in the process of going through hormone replacement therapy (HRT) in the effort to become a woman. Thus, while the Veteran was a man while in service, the Board out of deference to the Veteran's personal choice will refer to her in the female voice throughout this decision. In recent correspondence, the Veteran raises the additional claims of entitlement to service connection for hearing loss, tinnitus, and right eye vision loss. The claims involving hearing loss and tinnitus were previously denied by the RO in August 2008, and the Veteran did not appeal them. The denials thus became final one year after she was notified of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Therefore, new and material evidence would be required to reopen these claims at this point. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Although the VA has considered the Veteran's right eye disability in terms of her pension eligibility, no claim for service connection has been adjudicated. Therefore, the newly-raised claim for entitlement to service connection for a right eye disability is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on her part is required. REMAND The Veteran contends that she was exposed to stressful events during the course of her duties as a photographer in the United States Air Force and that she has subsequently developed PTSD as a result. The Veteran has a fairly complex psychiatric history. She acknowledges that she had a childhood history of abuse, which has shaped her current outlook. However, she contends that she did not have psychiatric problems upon entry into service, or that if she did have psychiatric problems at that time, they were not so disabling as to impact upon her daily functioning. Indeed, a November 1984 physical examination found the Veteran to be psychiatrically normal, and the Veteran denied any psychiatric symptomatology at that time. She contends now that her mental health became impaired during service after having been required to photograph scenes which were very distressing to her, including having to document abused children, accident victims, and other scenes involving death. She believes that these stressful events caused her to have adjustment problems which are reflected in her service personnel records, and which eventually resulted in her not being retained in the Air Force. In this regard, within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Board finds that the occurrence of the Veteran's in-service stressor events is adequately verified in the record, as her personnel records reflect that she photographically documented an aircraft accident, and a statement from a fellow service photographer, corroborates that she was responsible for documenting plane crashes, child abuse incidents, and spousal abuse incidents, as well as an occasion when a flight-line Airman was killed when a landing gear tire exploded. Therefore, in all further review, adjudicators and medical personnel should assume that the Veteran had these experiences during service. However, while a potential stressor may have been corroborated, the Board notes that it is unclear whether such stressors caused the Veteran to development PTSD. Moreover, it is unclear whether a current acquired psychiatric disability, to include PTSD, either began during or was otherwise caused by the Veteran's military service. The Veteran has pointed to a number of outbursts and problems in service as evidence of the onset of an acquired psychiatric disability, but the medical evidence of record from the Veteran's service does not actually diagnose her with any psychiatric disorder. As was detailed in the Board's now vacated decision, the record shows that the Veteran was evaluated by psychiatric services in service. She was first evaluated by the Chaplin/Family Advocacy Officer at a mental health services clinic in December 1985. However, mental status examination at that time was within normal limits, and the medical officer indicated that no diagnosis was warranted. Subsequent entries in January and March 1986, showed that her records were screened for reassignment by mental health services, but again there was no indication of any mental health problems, and that she was again found to be medically eligible for retention in March 1986. Other than a single entry in June 1990, shortly before her discharge from service, the service treatment records showed no complaints, abnormalities or diagnosis for any psychiatric problems during service. Regarding the June 1990 entry, the service records show that the Veteran was seen by psychiatric services for stress. No specific findings were reported and the diagnosis on Axis I was no diagnosis. The service records showed that the Veteran was AWOL on the day that she was seen at the mental health clinic in June 1990, and that she subsequently received nonjudicial punishment (Article 15) for her actions, which included punching a hole in a wall. The records show that the Veteran was given a general discharge from service in August 1990, based on a pattern of misconduct during service that, in addition to her Article 15, included dereliction of duty, writing a bad check, and failing a dormitory inspection. A review of her Airman Performance Reports showed that in her first year of service (September 1985 to September 1986), the Veteran received an overall rating of 7 by her supervisor (on a scale of zero to nine). The evaluation report indicated that the Veteran had progressed at a slow but satisfactory rate, that she needed constant supervision, and that she lacked the ability to grasp both the practical and technical aspects of her job. The Veteran was not recommended for promotion to E-3 by her commanding officer in December 1986, based on her supervisor's recommendation that she was not progressing in a satisfactory manner and did not pay attention to detail. The Veteran's next two annual performance evaluations (1986 to 1987 and 1987 to 1988) showed marked improvement in her duty performance and attitude, and she was given an overall score on nine on both reports. However, her evaluations from September 1988 to September 1989, and September 1989 to March 1990, showed that her quality of work steadily deteriorated and was inconsistent and unpredictable. She was counseled numerous times on the condition of her dormitory room, her personal hygiene and the condition of her uniform with little or no improvement. She had angry outbursts at work and in the dormitory which alienated the Veteran from her peers, and despite financial counseling regarding several overdue accounts at various local businesses, she continue to spend to excess. The Veteran was not recommended for promotion to sergeant in October 1989, but was subsequently recommended and promoted to E-5 in February 1990. However, in July 1990, the Veteran's commanding officer recommended that the Veteran's appointment (promotion) be vacated. In a letter to her senior rating supervisor (Command Sergeant Major) dated in July 1990, the Veteran wrote that she realized that she had not performed as well as she could have in the past six months because of serious financial and personal problems, but that she believed that she had finally straightened things out and wanted to continue her military service. On a Report of Medical History for separation from service in July 1990, the Veteran specifically denied any history of trouble sleeping, depression or excess worry, memory problems or nervous trouble of any sort, and no pertinent psychiatric abnormalities were found on examination at that time. Additionally, for more than a decade after service, there is no indication that the Veteran had any psychiatric problems. The Veteran's representative has argued that the presumption of soundness is warranted, and indeed, the Veteran was found to be psychiatrically normal at entrance and a VA examiner allowed that it was possible that pre-existing PTSD was aggravated by the Veteran's service. See 38 U.S.C.A. § 1111. However, even if the presumption of soundness is warranted, evidence of record must be presented showing that a current psychiatric disability either began during or was otherwise caused by the Veteran's military service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012). As such, an additional medical opinion should be obtained. The Board notes that the Veteran has been awarded Social Security Disability benefits, apparently based upon her psychiatric disability. When evidence collected by the Social Security Administration appears relevant to the issue before VA, the VA has a duty to consider the same evidence considered by that agency in making any decision regarding entitlement to VA benefits. Additionally, as the Veteran continues to receive VA medical care, her VA treatment records should be updated for the file. Accordingly, the case is REMANDED to the RO/AMC for the following actions: 1. The RO should obtain all records reflecting VA medical treatment afforded to the Veteran by the Denver VA Medical Center and all related clinics since November 2010 for inclusion in the claims file and or her virtual VA electronic file. 2. The RO should obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. After obtaining these medical records, the Veteran's claims file, including her service treatment and personnel records, all records obtained pursuant to the above requests, and any electronically-stored medical records, should be provided to a VA psychiatrist or psychologist for review. IF the psychiatrist deems that a clinical interview with the Veteran and/or further tests or studies would be helpful, then such an interview, tests, and/or studies should be arranged. Following a careful review of the record, the examiner should indicate whether it is more, less, or equally likely that a currently diagnosed acquired psychiatric disability, to include PTSD, either began during or was otherwise caused by the Veteran's military service. A clear rationale for all opinions would be helpful (meaning tell us why you think so). The examiner is requested to provide specific comment upon the stressor events which the Veteran experienced in service (as a photographer), and the impact these particular events had, if any, upon her currently diagnosed psychiatric disability(ies). A discussion as to whether these events were medically sufficient to cause all or part of the Veteran's particular PTSD is requested. The examiner should also discuss the relevance, if any, of Veteran's repeated pattern of misconduct, the lack of any psychiatric disorder being diagnosed in service, and the lack of any psychiatric disorder being diagnosed for approximately a decade following service (all documented in the discussion section of this remand). 4. After the development requested above has been completed, the RO should perform a review of the entire record. Any additional evidentiary development which may become apparent should be performed at this point. If the benefit sought on appeal remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond. 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 or by the Court 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). _________________________________________________ Matthew Blackwelder 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).