Citation Nr: 1315748 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-03 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to November 1981 and February 1982 to October 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Specifically, it is noted that upon rating determination in November 2007, claims for service connection for depression and PTSD were denied. In a March 2009 rating decision and the requisite statement of the case (SOC) issued to the Veteran in November 2009, the only claim listed was PTSD. The Court has held that 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). While documentation in the file concerning the Veteran's appeal of the initial November 2007 rating decision tends to focus on the claim for service connection for PTSD due to a personal assault in service, information in the claims file shows a diagnosis for other psychiatric disorders, including depression/dysthymia. In view of Clemons, the Board will continue to treat the appeal in the most expansive manner possible. Accordingly, as reflected on the cover page, the Board has recharacterized the claim for PTSD more generally to include other psychiatric conditions. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the 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. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In this case, the Veteran claims that an inservice personal assault in 1981 caused him to develop an acquired psychiatric disorder, namely PTSD. He claims that he was hit in the head with a gun and rendered unconscious for a period of time. Review of the record confirms that the Veteran is currently service-connected for posttraumatic headaches based on the in-service head trauma that may have been due to a personal assault. (See the November 2007 rating decision wherein service connection for posttraumatic headaches was established.) In that rating decision, the RO refers to a service medical record that showed the Veteran sustained head trauma on November 6, 1981, while at basic training at Fort Jackson, South Carolina. Review of the service treatment records (STRs) by the Board does not include an actual treatment document dated in November 1981. However, in view of the specificity of the November 2007 rating decision, the Board assumes that a November 6, 1981, document was before the RO and that it has since been misplaced. Moreover, the record does include reference to a history of a mugging upon examination in 1983. He was also treated for an apparently separate facial injury (nose area) in early 1983 after a fist fight. When filing his initial claim for VA benefits shortly after service in December 1983, the Veteran alleged that he was assaulted in 1981 and that he had had frequent headaches ever since. Upon VA examination in October 1984, he further detailed that this injury occurred on October 31, 1981, when he was in reserve training in Fort Jackson, South Carolina. He was held up and sustained head trauma. In statements in support of his claim, the Veteran has claimed that he was rendered unconscious for a period of time. There are also numerous statements of record in support of the Veteran's claim. Some attest to knowledge that the Veteran was assaulted during service and hit in the head with a gun. Several statements reference the fact that he is now nervous. In view of the November 2007 rating decision that awarded service-connection for headaches, due at least in part to head trauma, and the other evidence described above that corroborates the Veteran's history of in-service head trauma, the Board concedes that the Veteran's alleged stressor of sustaining head trauma as a result of in-service assault actually occurred. Because the Board has found this lay evidence is credible and may be probative, further development of the Veteran's claims is warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Generally, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2012). See Charles v. Principi, 16 Vet. App. 370 (2002) (observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence [including statements of the claimant]; contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the [VA] to make a decision on the claim."). Concerning the Veteran's service connection claim for an acquired psychiatric disorder, to include PTSD, the Board is of the opinion that after affording the Veteran all reasonable doubt in his favor and under the particular circumstances of this case, the Veteran has met the criteria of 38 C.F.R. § 3.159 outlined above supporting the provision of a VA examination and medical opinion. The record includes sufficient medical or lay evidence of a current psychiatric disability. Specifically, it is noted that VA records in September 2008 reflect diagnoses of dysthymia (and substance abuse) and private reports from 2010 include diagnosis of PTSD. Also, there is apparent physical and alleged psychological injury during service, but the record does not include actual medical opinion as to any possible relationship between current psychiatric disorders and service. As the Board lacks sufficient medical evidence at present to decide this claim, on remand a VA examination and medical opinion as to his alleged psychiatric disorder should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The VA examiner should opine on whether, if the Veteran has a valid PTSD diagnosis, his PTSD is related to any incident of service, such as the claimed personal assault the Veteran alleges during service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who currently treat him for any psychiatric disorders, including PTSD. After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from any VA Medical Center or clinic, for the period since November 2011 when he was last provided an exam by VA. The most recent private records showing treatment for PTSD was in September 2010. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After the development requested above has been completed, the RO/AMC shall schedule the Veteran for appropriate VA examination to determine the nature and likely etiology of any acquired psychiatric disorder, to include PTSD. The claims file, including a copy of this Remand, must be made available to the examiner for review. All tests deemed necessary should be undertaken. The examiner must consider the evidence of record indicating diagnoses of various psychiatric disorders, including PTSD. Based on the examination and record review, the psychiatrist or psychologist should provide an opinion as to the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has had, during the course of this appeal, a diagnosis of PTSD as a result of the conceded in-service stressor(s) related to head trauma/personal assault? Why or why not? If the examiner does not diagnose PTSD, the examiner should explain why the Veteran does not meet the criteria for a diagnosis of PTSD. Then, the examiner is also asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has a psychiatric disorder other than PTSD, such as depression/dysthymia, that was incurred during his active service or is otherwise etiologically related thereto, to include the head trauma stressor/personal assault reported by the Veteran? Why or why not? Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the requested question. 3. Thereafter, the RO/AMC shall take such additional development action as it deems proper with respect to the claims on appeal. When the development requested has been completed, the issues on appeal should again be reviewed by the RO/AMC on the basis of the additional evidence and readjudicated. If the benefit sought is 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. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).