Citation Nr: 1316680 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-15 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety. 2. Entitlement to service connection for residuals of head trauma, to include headaches and memory loss. 3. Entitlement to service connection for a sleep disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from August 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. During the pendency of the appeal, jurisdiction of the Veteran's claims file was transferred to the Nashville, Tennessee, RO. The Board notes that the July 2005 rating decision denied service connection for PTSD, depression and anxiety, a sleeping disorder, and headaches, memory loss, residuals of head trauma, and denied nonservice-connected pension benefits. Thereafter, the Veteran entered a notice of disagreement as to all issues in August 2005. A statement of the case was issued in March 2008 regarding the service connection issues; however, a Decision Review Officer (DRO) decision issued at the same time granted nonservice-connected pension. Therefore, as such is a full grant of benefit sought on appeal, that issue is not properly before the Board. With respect to the Veteran's service connection issues, the Board notes that the March 2008 statement of the case sent to the wrong address. Therefore, it was resent in April 2009 and the Veteran perfected his appeal in a timely manner in May 2009. The Board further observes that, in connection with his May 2009 substantive appeal, the Veteran requested a hearing before a DRO at the RO. Thereafter, later in May 2009, he was informed that his requested DRO hearing was scheduled for June 2009. However, in a June 2009 communication, he indicated that he wished to withdraw his DRO hearing request and have his case forwarded to the Board for a decision. Therefore, the Board finds that the Veteran's hearing request has been withdrawn. Pertinent to the Veteran's claims for service connection for PTSD, and depression and anxiety, the Board has recharacterized such issues as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety based on the United States Court of Appeals for Veterans Claims' (Court's) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional relevant VA treatment records that have not been considered by the agency of original jurisdiction (AOJ). However, as his claims are being remanded, the AOJ will have an opportunity to review all the newly associated documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). With respect to the Veteran's claim for service connection for an acquired psychiatric disorder, he alleges that he has PTSD, depression, and anxiety, as well as a sleep disorder, as a result of his military experiences. In this regard, in a December 2004 statement the Veteran reported that, when he was stationed in Darmstadt, Germany, with the 547 Engineering Battalion in May 1976, outside of the base at a training exercise, his roommate was the operator of a crane and was responsible for the electrocution death of five or six troops with 30 or 40 more troops being severely shocked. He stated that he witnessed the burned bodies. In December 2004 the Veteran was seen at a VA PTSD consult and he reported the same in-service stressor and stated that he had to testify in the court martial of the operation and he felt that he was denied a promotion due to his testimony. He also reported that he was involved in another accident where he accidentally cut off someone's finger. Therefore, the Veteran alleges that service connection is warranted for an acquired psychiatric disorder. Likewise, the Veteran alleges that he has residuals of in-service head trauma, to include memory loss and headaches. His service treatment records indicate that in February 1975, the Veteran fell out of a two and half ton truck and was brought in for observation. On examination he was somewhat sluggish and was diagnosed with possible head trauma and a small, superficial abrasion on his occipital. The Veteran contends that he currently has residuals of such in-service head injury, to include memory loss and headaches. In December 2004, the Veteran was diagnosed with an Axis I diagnoses of major depression and cocaine and alcohol dependence. It was stated that the Veteran did not meet the criteria for PTSD because he did not exhibit criteria C symptoms of avoidance and numbing. The Veteran was afforded a VA examination in March 2005 in order to determine the nature and etiology of his alleged disorders. At such time, he complained that he was irritable, angry, and depressed most of the time. It was noted that he slept for three hours without medications and that his recent and immediate memory were mildly impaired. The VA examiner diagnosed the Veteran with depressive disorder, polysubstance abuse that was in early remission, and a mild substance-induced mood disorder. The VA examiner stated that there were a few traumatic symptoms from childhood abuse and that the "military history does not match category A or common sense." It was noted that the Veteran's depression was 75 percent situational and 25 percent substance induced. The VA examiner then stated "NO SC [service-connected] mental illness is found." Based on such examination, the RO denied service connection for PTSD on the basis that the Veteran did not meet the criteria for such a diagnosis. Likewise, the RO determined that service connection for depression, and anxiety was not warranted as such were not related to his military service. Additionally, the RO found that the Veteran did not have a separate diagnosis of a sleep disorder, rather, the Veteran's sleeping impairment was related to his depressive disorder. Similarly, the RO determined that the Veteran did not have a diagnosis of headaches and his memory impairment was related to his depressive disorder. Since such decision, additional VA treatment records have revealed a diagnosis of headaches and, in January 2012, the Veteran's PTSD screening was positive. Moreover, the Board observes that no etiological opinion regarding whether the Veteran has a sleep disorder that is separate and distinct from his psychiatric disorder has been provided. Likewise, while the record demonstrates an in-service head injury, as well as current diagnoses of headaches and mild memory impairment, no etiological opinion regarding whether such symptoms are separate and distinct from his psychiatric disorder, and, if so, whether they are related to his in-service head injury, has been provided. Therefore, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the current nature and etiology of his claimed disorders. Additionally, prior to such examination, the AOJ should request that the Veteran provide any additional information regarding his claimed stressors and, thereafter, attempt to verify his alleged stressors with any appropriate source, to include U.S. Army and Joint Services Records Research Center (JSRRC). In this regard, the AOJ should review the file and prepare a summary of the Veteran's claimed stressors regarding (1) the electrocution of several soldiers when he was stationed in Darmstadt, Germany, with the 547 Engineering Battalion in May 1976, and (2) cutting off another soldier's finger. Thereafter, the AOJ should attempt to verify such stressors with any appropriate source, to include JSRRC. Finally, the Veteran should be given an opportunity to identify any healthcare provider who treated him for an acquired psychiatric disorder, a sleep disorder, and residuals of head trauma, to include headaches and memory loss. After securing any necessary authorization from him, obtain all identified treatment records that are not already of record, to include VA treatment records from the Nashville and Memphis, Tennessee, VA facilities, dated from February 2009 to the present that are not already contained in the paper or Virtual file, for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide any additional information regarding his claimed stressors regarding (1) the electrocution of several soldiers when he was stationed in Darmstadt, Germany, with the 547 Engineering Battalion in May 1976, and (2) cutting off another soldier's finger. He should specifically provide names of witnesses, the name of the unit he was serving with at the time, and the approximate date and location of such events. 2. The Veteran should be given an opportunity to identify any healthcare provider who treated him for an acquired psychiatric disorder, a sleep disorder, and residuals of head trauma, to include headaches and memory loss. After securing any necessary authorization from him, obtain all identified treatment records that are not already of record, to include VA treatment records from the Nashville and Memphis, Tennessee, VA facilities, dated from February 2009 to the present that are not already contained in the paper or Virtual file, for consideration in his appeal. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The AOJ should attempt to verify the Veteran's alleged stressors with any appropriate source, to include JSRRC. In this regard, the AOJ should review the file and prepare a summary of the Veteran's claimed stressors regarding (1) the electrocution of several soldiers when he was stationed in Darmstadt, Germany, with the 547 Engineering Battalion in May 1976, and (2) cutting off another soldier's finger. Thereafter, the AOJ should forward the summary along with the Veteran's statements and service personnel records, to any appropriate source, to include JSRRC, in an attempt to verify such stressors. Any response should be documented in the claims file. 4. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder, sleep disorder, and residuals of head trauma. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. In this regard, the AOJ should specifically include documentation as to whether the Veteran's claimed stressors have been verified. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. (B) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of a verified in-service stressor. In this regard, the examiner should consult the claims file in order to determine whether the Veteran's claimed stressors have been verified by the AOJ. If the examiner does not find that the Veteran meets the DSM-IV's criteria for PTSD, he or she should explain why in detail. (C) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include the alleged electrocution of several soldiers and/or cutting off another soldier's finger. (D) Does the Veteran have a diagnosis of a sleep disorder separate and distinct from his acquired psychiatric disorder? If so, is such sleep disorder at least as likely as not related to the Veteran's military service? (E) Does the Veteran have a diagnosis of headaches and memory loss separate and distinct from his acquired psychiatric disorder? If so, are such symptoms at least as likely as not residuals of the Veteran's documented in-service head trauma in February 1975, or otherwise related to his military service? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements and the March 2005 VA examiner's findings. The rationale for any opinion offered should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence associated with the paper and Virtual claims files after the issuance of the June 2009 supplemental statement of the case. If any of the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).