Citation Nr: 1318288 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-35 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active duty from July 1973 to March 1974. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a December 2004 rating decision by Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for a psychiatric disorder, claimed as PTSD. A timely appeal was noted with respect to that decision. The claims folder was later transferred to the jurisdiction of the Louisville RO. In December 2009, the Board remanded this issue to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. After completion of the requested development, the case was returned to the Board for further appellate action. In September 2010, the Board denied service connection for PTSD, and remanded the matter of service connection for a psychiatric disability, other than PTSD, for further development. The Veteran appealed that portion of the September 2010 Board decision that denied entitlement to service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court). In February 2011, the Court granted a Joint Motion for Remand, which vacated the Board decision and remanded it for action consistent with the Joint Motion. In November 2011, the Board denied service connection for PTSD. The Veteran again appealed to the Court. In August 2012, the Court granted a Joint Motion for Remand, which vacated the Board decision and remanded it for action consistent with the Joint Motion. The matter has now been returned to the Board in accordance with the Joint Motion. To date, the RO/AMC had not taken additional development or adjudication on the issue of service connection for a psychiatric disability, other than PTSD. Since service connection for PTSD is being remanded and VA has an obligation to consider all psychiatric diagnoses raised by the record, the Board is characterizing the claim as service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and anxiety as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of the Veteran's Virtual VA electronic folder does not show any pertinent 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 August 2012 Joint Motion determined that the Board did not adequately consider the possibility of preexisting PTSD being aggravated by in-service stressors. In the November 2011 denial, the Board noted that the February 2010 VA examiner suggested that the Veteran had PTSD in childhood, but her current symptoms and symptoms in the military did not meet the criteria for a PTSD diagnosis. Since the Veteran had a normal entrance examination, the presumption of soundness attached and the evidence of preexisting PTSD would have to be clear and unmistakable. The Board found that the VA examiner's remarks, alone, were not suggestive of clear and unmistakable evidence of a preexisting disability and did not further consider the possibility of aggravation. Here, the Veteran reports being subject to persistent obscene phone calls in service before having an early separation due to pregnancy. Her spouse at the time submitted a statement supporting her reports. (See L.T. August 2004 statement). Service treatment records and personnel records are silent for any reference to sexual harassment and any evidence of psychiatric treatment. However, in her Report of Medical History for separation she stated that she did not know if she had "nervous trouble of any sort" and denied having depression or excessive worry. In July 2012, records from Altus and Sheppard Air Force hospitals were received that reflect the Veteran had an episode of psychosis within a year of separation. She underwent inpatient treatment from September to November 1974 upon reports of bizarre behavior following her pregnancy. Following approximately two months of inpatient treatment, the discharge diagnosis was acute schizophrenic episode, severe, improved. It is not clear that the entire treatment folder is of record. From October 1990 through March 2005, the Veteran had several inpatient admissions at River Park Hospital. She does not report in-service sexual harassment to any of these clinical examiners. Rather, beginning in October 1992, examiners noted flashbacks of incest perpetrated by her brother and paternal grandfather. Treatment records from 1995 and 2002 also note a history childhood sexual abuse, while 2005 records reflect a history of unspecified physical, sexual, and emotional abuse. Similarly, at the February 2010 VA examination, she reported a history of childhood physical and sexual abuse by her brother and father. The Veteran initially reported the in-service stressor in her July 2004 claim. In an August 2006 statement, she detailed that she constantly received obscene phone calls from a stranger in service. She became incredibly anxious and nervous over her fear of being stalked by the unknown caller. Her nervous condition increased when she learned she was pregnant. She recalled that she tricked the caller into meeting her then husband. Her husband confronted the caller and was able to identify him to military authorities. She believed the caller was discharged from service. She also remembered having a psychotic episode approximately 10 days after her son's birth resulting in her initial admission for inpatient psychiatric treatment. She thought it was prompted by her newly obsessive compulsive disorder of constantly showering. After discharge from inpatient treatment, she hid her symptoms. However in July 1988, she had a mental breakdown over her teenaged son's behavior. Since then, she has had 13 to 15 stints of inpatient psychiatric treatment. She continues to experience severe social and occupational impairment due to her psychiatric problems variously diagnosed as bipolar disorder, PTSD, attention deficit disorder, and hyperactive disorder. The Veteran underwent a VA examination in February 2010 where she identified childhood abuse and obscene phone calls in service as stressors. She admitted that the obscene phone calls may have been a delusion, but the examiner noted that her then husband corroborated her reports. The examiner opined that the Veteran had PTSD in childhood; however, she listed a current diagnosis of anxiety disorder since the Veteran did not currently meet the avoidance criteria for PTSD. She also diagnosed bipolar disorder with psychotic features. She commented that bipolar disorder had its onset in military service, but its present severity is not believed to be due to military trauma. To comply with the Joint Motion, another VA psychiatric examination is necessary to determine whether there is clear and unmistakable evidence both that the Veteran had a preexisting psychiatric disorder and if so, whether it did not undergo a permanent increase in severity due to service. Id.; Stegall v. West, 11 Vet. App. 268, 271 (1998) (where a remand order of the Court or Board is not complied with, the Board itself errs in failing to insure compliance); Clemons, supra. Accordingly, the case is REMANDED for the following action: 1. An appropriate official at the agency of original jurisdiction should request the Veteran's complete treatment records from Altus and Sheppard Air Force hospitals, dated from March 1974 to March 1975, including the inpatient records from the September to November 1974 admission and associate these records with the claims file. 2. The claims file should be returned to the February 2010 VA examiner or to another qualified physician if the original examiner is unavailable. For PTSD and/or any other psychiatric disability present, the examiner should indicate whether there is clear and unmistakable evidence that it (or a related psychiatric disorder) preexisted the Veteran's entrance into active service in July 1973. For any preexisting psychiatric disorder, the examiner must state whether there is clear and unmistakable evidence that it did not undergo a permanent increase in severity due to the in-service stressor. The examiner is advised that clear and unmistakable evidence is an onerous evidentiary standard and means that the evidence is undebatable. However, it does not require the absence of conflicting evidence. Vanerson v. West, 12 Vet. App. 254 (1999); Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If a psychiatric disorder was not found to preexist active service, then the examiner should opine whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any current psychiatric disorder had its onset in active service, or is otherwise causally or etiologically related to active duty service, or, in the case of a psychosis, was manifested within the first post service year. The medical reasons for accepting or rejecting the Veteran's statements of continuity should be set forth in detail. The examiner must probe beyond the listed diagnostic labels given by prior treating providers and discuss the underlying symptoms, including those exhibited following service, and their relationship to the current psychiatric disorder(s). If additional testing or examination is needed, this should be scheduled. 3. After completing all development required to adjudicate the Veteran's claim, re-adjudicate this issue. If the benefit sought remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ THOMAS J. DANNAHER 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).