Citation Nr: 1318193 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-13 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 1990. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. The Veteran then perfected a timely appeal of these issues. The psychiatric claim on appeal was originally for PTSD only; however, the record reflects a diagnosis of depressive disorder. In this regard, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) 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. In consideration of the foregoing, the Board has recharacterized the issue as reflected on the title page. Following the January 2013 certification of this appeal to the Board, additional medical and lay evidence was submitted, and no waiver from the Veteran was received. However, these records are duplicative of evidence already contained in the claims file. As such, a waiver for this evidence is not necessary, nor is the initial consideration of this evidence by the RO. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this remand, along with the Veteran's paper claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims can be properly adjudicated. Initially, during the course of the appeal, the regulations governing PTSD were amended effective July 13, 2010. See 75 Fed. Reg. 39843-52 (July 13, 2010) (codified at 38 C.F.R. 3.304(f)(3) (2012)). The amendment eliminates the requirement for corroboration of the claimed in-service stressor if the claimed stressor 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. The Veteran has not been provided with notice regarding establishing service connection for PTSD under the revised regulations. See 38 C.F.R. § 3.304(f), effective on and after July 13, 2010. On remand, this should be remedied. See 38 U.S.C.A. § 5103(a) (West 2002). Second, in a May 2005 VA Medical Center (VAMC) treatment note, the Veteran stated that he had recently moved to Florida and would be seeking his VA treatment from that state. To date, VAMC records from the Florida location are not in the claims file. Upon remand, these pertinent records must be obtained. Additionally, the Veteran's most recent, pertinent outpatient treatment records from the VA Medical Center (VAMC) in Birmingham, Alabama, are dated from March 2007 (as not all of the Veteran's VAMC records were uploaded to the Veteran's Virtual VA paperless claims file). Upon remand, these records must also be obtained. Additionally, in a March 2007 VAMC treatment record, the Veteran stated that he had moved to Fort Payne, Alabama, and would be seeking his VA treatment from a Community-Based Outpatient Clinic (CBOC) in that location. It is unclear whether these records have been obtained. Thus, upon remand, these records must also be obtained. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Third, a remand is required in order to afford the Veteran VA examinations to determine the nature and etiology of the disorders on appeal. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). An examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of disorder; and, (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service; but, (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, the evidence of record establishes that the Veteran has current diagnoses of depressive disorder, polyarthralgia, backache, and chronic low back pain. See current VA diagnoses list. Regarding an in-service incurrence of this disorder, the Veteran's service treatment records (STRs) document an injury to the back and a diagnosis of a back strain in November 1989. No other pertinent complaints are documented in the STRs. The Veteran's military service ended in January 1990. Post-service, as early as May 1990, the Veteran was seen for complaints of low back pain. The Veteran's acquired psychiatric disorder is not documented in the STRs. However, throughout the appeal, the Veteran has argued that his current psychiatric diagnosis is actually PTSD. Regarding a PTSD stressor, the Veteran asserts that in November 1989, he tripped over an explosive device while he was responding to an alarm, and injured his back. This November 1989 incident is documented in the STRs. Additionally, the Veteran's Military Occupational Specialty (MOS) was Security Specialist. Thus, despite the RO's findings to the contrary, the Board finds that the Veteran's PTSD stressor is conceded. Further, throughout his appeal, the Veteran and his mother have argued that the Veteran's current psychiatric and back disorders were incurred during his active military service and have continued since that time. In a November 2007 statement from the Veteran and in a May 2013 statement from the Veteran's representative, both parties requested that the Veteran be afforded VA examinations for these claims. The Board notes that, to date, the Veteran has never been afforded a VA examination and medical opinion for these claims. Since the claims file contains lay and medical evidence of current disorders, in-service incurrences, and an indication that the disorders are related to the Veteran's active military service, the Board finds that a remand is required in order to afford the Veteran VA examinations to determine the nature and etiology of the disorders currently on appeal. McClendon, 20 Vet. App. at 86. The Veteran is hereby notified that it is his responsibility to report for these examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran of the requirements for establishing service connection for PTSD under the revised regulations. See 38 C.F.R. § 3.304(f). 2. Obtain all pertinent VA outpatient treatment records from the Florida VAMC that have not been secured for inclusion in the record. Obtain all pertinent VA outpatient treatment records from the Birmingham, Alabama, VAMC (to include any CBOCs near Fort Payne, Alabama), since March 2007 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 3. After obtaining the above records, schedule the Veteran for a VA psychiatric examination with an appropriate expert to determine the nature and etiology of his acquired psychiatric disorder. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) State whether the Veteran has a current diagnosis of PTSD, consistent with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition of the American Psychiatric Association (DSM-IV). b) In addition to the other information provided in the examination report, state whether or not the claimed PTSD stressor(s) is related to the Veteran's fear of hostile military or terrorist activity. c) Thereafter, is it at least as likely as not (a 50 percent probability or greater) that any currently diagnosed acquired psychiatric disorder (to include the already diagnosed depressive disorder) was incurred during the Veteran's active military service, to include his conceded November 1989 PTSD stressor? The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After obtaining the above records, schedule the Veteran for a VA spine examination with an appropriate expert to determine the nature and etiology of his current back pain. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Does the Veteran have a current back disorder? b) If so, is it at least as likely as not (a 50 percent probability or greater) the current back disorder was incurred in or is otherwise related to the Veteran's active military service, to include his November 1989 in-service back strain? The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 Court 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). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).