Citation Nr: 1317176 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 08-12 946A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2012, this matter was remanded in order to provide the Veteran with an opportunity to testify at a hearing before a Veterans Law Judge. This hearing took place before the undersigned in March 2013. A transcript of these proceedings has been associated with the Veteran's virtual claims file. At the hearing, the Veteran submitted evidence in connection with his claim that was accompanied by a waiver of initial RO consideration. In addition to the physical claims file, the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the paper claims file and will proceed with review of the claim based upon all relevant evidence. 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 Veteran testified before the Board that he had symptoms of psychiatric disorders in service and continuing thereafter. He indicated that he began seeking treatment for these symptoms in approximately 1985 at a VA clinic. The Veteran's claims file contains VA treatment records dating from approximately 2001, but no records prior to this. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA must obtain relevant records of VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c). VA treatment records show assessments of PTSD, generalized anxiety disorder, and depression. The Veteran testified before the Board that he was a medic in the military (and this is confirmed by his DD 214). While he was stationed at Ft. Hood, he reported that a helicopter crashed and that he was part of the crew that was deployed to recover the body parts of three men killed in the accident. Service personnel records show that the Veteran was stationed at Ft. Hood during this period. A newspaper article submitted by the Veteran at the hearing reports the helicopter crash; and information contained at Army Air Crews.com; www.armyaircrews.com/huey.html reports that a helicopter did crash at Ft. Hood on November 30, 1970 with three fatalities. Hence, there is credible supporting evidence of the reported incident. See 38 C.F.R. § 3.304(f) (2012). He also testified that he had symptoms of depression in service and that his psychiatric symptoms dated from this incident. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); cf. Walker v. Shinseki, 706 F.3d 1331 (Fed. Cir. 2013) (holding that a continuity of symptomatology under 38 C.F.R. § 3.303(b) cannot establish a link between a current disability and service except for chronic diseases listed in 38 U.S.C.A. § 1101). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In this case the VA outpatient treatment records suggest that the current psychiatric disability may be related to the events in service. There has been some variation in the reports of these incidents (for instance in July 2005, he reported that he had not slept well since being in Vietnam, although he has since acknowledged that he had no service in Vietnam; and in October 2005, the Veteran reported flashbacks since the incident when he was "flying in the chopper") and they have been described in conjunction with other events following service. An examination is needed to clarify the psychiatric diagnoses and obtain a clear opinion as to whether any of these disabilities can be attributed to in-service events. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the locations and approximate dates of VA mental health treatment prior to 2001 (including the reported treatment beginning in 1985) and since 2007. Then request any records not already part of the claims folder. Efforts to obtain records identified by the Veteran must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. The Veteran should be informed that he may submit medical records directly to VA. The Veteran should also be informed of any records that cannot be obtained, of the efforts made to obtain the records, and of any further actions that will be taken with regard to the claim, including the possibility that the claim will be denied. 3. Schedule the Veteran for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. a) The examiner should first determine whether the Veteran has an acquired psychiatric disorder, to include PTSD, according to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria that has been demonstrated at any point since around the time of his claim in February 2006. If the Veteran is diagnosed with PTSD, the examiner should specify the stressors that provide the basis of the diagnosis. If the Veteran is found to not have met the criteria for a diagnosis of PTSD at any point since around the time of his claim in February 2006, the examiner should note the criteria that are not met. b) For any other psychiatric disability demonstrated at any point since around the time of the Veteran's claim in February 2006, the examiner should answer the following: Did such disability have its onset during active duty, within one year of active duty (in the case of a psychosis), or is such condition otherwise related to a disease or injury (including reported stressors such as the helicopter crash) during Veteran's military service? The examiner should provide reasons for all opinions. In offering any opinion, the examiner must discuss the Veteran's reports of regarding the incurrence of his claimed disorder and symptomatology; including depression, nightmares, and flashbacks that may have begun in service. If the examiner cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide the necessary opinion without speculation, and note whether it would be possible to provide the opinion with additional evidence or whether the inability is due to the limits of scientific or medical knowledge. 5. If any benefit sought on appeal remains denied, issue a supplemental statement of the case; then return the case to the Board, if otherwise in order. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ Mark D. Hindin 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).