Citation Nr: 1317480 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 05-34 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim to reopen service connection for "major depressive disorder, claimed as post traumatic stress disorder." The Board has recharacterized the claim on appeal as a claim for service connection for an acquired psychiatric disorder, to include PTSD, in light of the United States Court of Appeals for Veterans Claims decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In October 2005 correspondence, the Veteran requested a Board hearing. In January 2008, he was scheduled for a Travel Board hearing; he failed to appear for the hearing. He has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). This matter was before the Board in August 2007 and May 2008 when it was remanded for additional development. In March 2011, the Board reopened the Veteran's claim for service connection for an acquired psychiatric disorder (to include PTSD), and remanded the matter for additional development. Regrettably, the appeal is again 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 finds that further evidentiary development is warranted before the Veteran's claim for service connection for an acquired psychiatric disorder (to include PTSD) may be adjudicated. In March 2011, the Board remanded the matter of service connection for an acquired psychiatric disorder (to include PTSD), in pertinent part, to afford the Veteran a VA examination to determine the nature and etiology of any found psychiatric disorder. The Veteran was afforded a VA examination in June 2012. The examiner diagnosed the Veteran with major depressive disorder and found that the noted stressor, planes departing his ship and never returning, was not adequate to support a diagnosis of PTSD. The examiner also found that the stressor was not related to fear of hostile military or terrorist activity (in light of July 2010 amendments governing service connection for PTSD under 38 C.F.R. § 3.304), as the Veteran did not express events in that manner, he was vague about events, and he did not evidence any change in his demeanor reporting these events. Ultimately, the examiner concluded that it was unlikely that the Veteran's major depressive disorder was related to his service. The Board notes that the Veteran's alleged stressors include witnessing a dead body on the side of the U.S.S. Ranger, killed during a riot or deceased due to suicide. His service personnel records show that he had service aboard the U.S.S. Coral Sea from December 1972 to March 1974, and aboard the U.S.S. Ranger from September 1974 to June 1975. Notably, command histories of the U.S.S. Ranger from 1974 to 1975 confirm that in September 1974, the U.S.S. Ranger responded to a call for medical assistance due to a suicide. See generally, Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). In light of the above, and because it does not appear that the June 2012 examiner addressed the verified stressor of witnessing the dead body of someone killed by suicide while the Veteran was stationed aboard the U.S.S. Ranger in September 1974, the Board finds that an addendum opinion to address such stressor is necessary. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board imposes upon the [Secretary] a concomitant duty to ensure compliance with the terms of the remand). Finally, as the claims file is being returned, it should also be update to include recent VA treatment records dating from May 2012. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the relevant mental health treatment records from the Phoenix VA Medical Center dating from May 2012. 2. Then forward the Veteran's claims file (to include this remand) to the June 2012 examiner/opinion provider for review and an addendum medical opinion (to encompass consideration of the additional medical evidence received). The consulting provider must re-review the record, specifically including the additional records received. A notation to the effect that this record review occurred should be included in the report. Thereafter, the examiner should set forth the following: a. Identify all psychiatric disabilities present. b. For PTSD if present: the examiner should address whether it is more likely than not (i.e., a greater than 50 percent degree of probability), at least as likely as not (i.e., a 50 percent or higher degree of probability), or unlikely (i.e., a less than 50 percent degree of probability) that PTSD is a result of the Veteran's active service (and specifically the verified stressor of a dead body due to suicide recovered by the U.S.S. Ranger in September 1974). c. For any other acquired psychiatric disorder found: the examiner should address whether it is more likely than not (i.e., a greater than 50 percent degree of probability), at least as likely as not (i.e., a 50 percent or higher degree of probability), or unlikely (i.e., a less than 50 percent degree of probability) that any diagnosed acquired psychiatric disorder is related to service. A complete rationale for any opinion expressed, to include citation to specific documents in the claims file and supporting clinical findings, must be included in the examination report. If an opinion cannot be expressed without resorting to mere speculation, the examiner must so state and further state why speculation is required. If the June 2012 VA examiner/opinion provider is unavailable to provide the further explanation sought, arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist to secure the opinions sought. 3. After completion of the above, and any additional notification and/or development deemed warranted, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response thereto. The case should then be returned to the Board, if otherwise in order. The appellant 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 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). _________________________________________________ C. CRAWFORD 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).