Citation Nr: 1316008 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-04 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than major depressive disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to April 1963, from May 1969 to August 1977, and from October 1979 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Jackson, Mississippi. The case was subsequently transferred to the jurisdiction of the RO in Denver, Colorado. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. The Board notes that the psychiatric claim on appeal has been developed as a claim for PTSD. However, the Court of Appeals for Veterans Claims 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim on appeal has been recharacterized to include any psychiatric disorder other than major depressive disorder, which is already service-connected. In July 2011 and August 2011 correspondence, the Veteran raised the issue of entitlement to service connection for a bilateral knee disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The Board's review of the claims file reveals that further development is needed prior to adjudication of the claim for service connection for an acquired psychiatric disorder other than major depressive disorder. Initially, the Board notes that, in a May 2001 Board decision and in various rating decisions, the Veteran's later periods of service are characterized as extending from May 1969 to October 1980. However, the record only appears to contain DD-214 Forms with the following dates of service: September 1962 to April 1963, May 1969 to March 1971, March 1971 to August 1977, and October 1979 to October 1980. Therefore, an attempt should be made to verify the Veteran's period of service between 1977 and 1979. The record also suggests that there are outstanding VA treatment records pertinent to the appeal. Specifically, in a March 2008 VA Form 21-4142, the Veteran indicated that he has received treatment from the VA Medical Center (VAMC) in Tuskegee, Alabama. However, the claims file does not include records from this particular facility. VA is held to have constructive notice of the contents of VA records at the time of adjudication. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, these records must be obtained before the claim for entitlement to service connection can be adjudicated. The Board also notes that, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims such as the Veteran's, which is pending before VA on or after July 12, 2010. Pursuant to 38 C.F.R. § 3.304(f) , as revised, 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 PTSD, 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. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). The Board notes that the Veteran has not been notified of the regulatory amendment. Thus, upon remand, the RO/AMC should provide the amended version of the regulation to the Veteran. Additionally, a remand is necessary to afford the Veteran a VA examination for the claim on appeal. In this regard, the Board notes that the Veteran is already service-connected for major depressive disorder, previously characterized as dysthymic disorder. Accordingly, a number of psychiatric VA examinations have been conducted, including ones provided in February 1994, August 1999, March 1994, and October 2009, but none of the reports provide medical opinions pertinent to this appeal. In February 2012, a VA examination was specifically provided in connection with the Veteran's current claim. The examiner diagnosed the Veteran with major depressive disorder, which is a condition that is already service-connected. However, the examiner did not review the claims file. While a medical opinion may not be discounted solely because the examiner did not review the claims file, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), it does not appear that the examiner in this case was fully aware of all of the relevant facts. The Veteran contends that, while serving in Vietnam, he learned of a colleague who died and that three helicopters went down during which some of his colleagues were killed. He also claims that an ammunition dump was hit and exploded one hour after he loaded it. The February 2012 VA examiner did determine that each of these stressors met Criterion A for PTSD and was related to a fear of hostile military or terrorist activity. The Veteran's service treatment records also document psychiatric complaints, diagnoses, and treatment. Specifically, these records show that, during an April 1963 discharge examination, he was found to have an inadequate personality. On two occasions in February 1973, the Veteran sought psychiatric treatment. During the first one, he was nervous and very upset, and the physician noted that he "suddenly becomes upset for not obvious reasons at all." He was prescribed Thorazine, an anti-psychotic medication. On the second occasion, the Veteran sought treatment for sudden trouble breathing and a headache. He described feeling like there was a band around his chest preventing him from breathing, and he stated that he had experienced similar episodes in the past. He was diagnosed with a severe anxiety reaction and was prescribed Thorazine. Additionally, the record contains psychiatric diagnoses other than major depressive disorder. For example, the Veteran was diagnosed with PTSD in a January 2009 VA treatment report. While the February 2012 VA examiner found that the Veteran's symptoms did not meet the criteria for PTSD, the January 2009 VA provider found to the contrary using the same criteria from the Diagnostic and Statistical Manual of Mental Disorders. These aforementioned facts were not discussed by the examiner. As such, the Board finds that further examination is necessary to adjudicate the claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Record Center (NPRC) and/or the appropriate service entity and request verification of the Veteran's period of service from 1977 to 1979. 2. The RO/AMC should obtain all outstanding VA treatment records from the VA Medical Center in Tuskegee, Alabama, as well as any recent, ongoing VA medical records. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder other than major depressive disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders other than major depressive disorder. For each diagnosis other than major depressive disorder and PTSD, the examiner should state when the disorder first manifested. He or she should also opine as to whether the disorder is at least as likely as not related to the Veteran's military service, including his symptomatology therein. (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.) With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. In making this determination, the examiner should discuss the diagnoses documented in the claims file, including the diagnosis rendered in a January 2009 VA treatment record. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 5. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case 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 provisions of the amended version of 38 C.F.R. § 3.304. 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). _________________________________________________ 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).