Citation Nr: 1319731 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-50 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire 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 M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to January 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In June 2011, the Veteran was notified that a travel board hearing was scheduled for August 2011. In July 2011, the Veteran indicated that he no longer wanted a hearing. Therefore, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Board notes that the issue of entitlement to service connection for a psychiatric disorder was initially adjudicated as entitlement to service connection for PTSD. However, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). Therefore, the Board has recharacterized the issue as reflected on the title page. The Virtual VA eFolder has been reviewed, but does not contain additional documents relevant to this appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran has contended that he has a psychiatric disorder that is related to his military service. In January 2008, he submitted a stressor statement in which he reported that a tank and truck collided outside of the motor pool and resulted in many injuries from a fire while he was stationed at Fort Hood, Texas, in January 1962. The Veteran provided the date and location of the incident, as well as the unit to which he was assigned. However, there is no indication that VA made any attempts to verify his claimed stressor. Therefore, upon remand, the RO/AMC should attempt to corroborate the alleged stressor. In addition, the Veteran reported another stressor during a May 2008 VA examination in May 2008. In particular, he told the examiner that he was harassed during service. The Board notes that VA has established special procedures for evidentiary development in cases of PTSD due to personal assault. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1MR (M21-1MR), Part IV, regarding personal assault. M21-1MR notes that personal assault is an event of human design that threatens or inflicts harm. Examples of personal assault include rape, physical assault, domestic battering, robbery, mugging, stalking, and harassment. M21-1MR, Part IV, Subpart ii, 1.D.17.a. M21-1MR also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g. When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes include a request to be transferred to another military duty assignment, deterioration in work performance, substance abuse, episodes of depression, panic attacks, anxiety without an identifiable cause, or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5); see Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in post-traumatic stress disorder personal assault cases). Applicable regulations specifically provide that VA will not deny a claim for service connection for PTSD that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may also submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5) (2012). In this case, the Veteran was not provided a notice letter advising him of VA's special evidentiary development procedures in case involving personal assault. Therefore, the Board finds it necessary to remand the Veteran's claim so that he may be afforded a proper notice letter. The Board also observes that the claims folder contains the Veteran's DD Form 214, which shows that he was discharged "under honorable conditions" with less than one year of service, and his DA Form 20. However, there is no indication that the Veteran's complete service personnel records were obtained. These records are particularly relevant under the circumstances of this case and should be requested. Moreover, it appears that the Veteran may be in receipt of benefits from the Social Security Administration (SSA). In his VA Form 21-526, Veteran's Application for Compensation and/or Pension, the Veteran responded "yes" to the question "[h]ave you claimed or are you receiving disability benefits from the Social Security Administration (SSA)?" Subsequent medical records also indicate that he is on disability and possibly Supplemental Security Income (SSI) for medical disabilities, including a kidney transplant and vision issue. However, the claims file does not contain a copy of the decision to grant benefits or the records upon which that decision was based. Nor does it appear that any attempt was made to obtain such records. Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that a veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, an attempt should be made to obtain and associate the Veteran's SSA records with the claims file. Moreover, it appears that there may be outstanding VA medical records. The evidence of record suggests that the Veteran receives VA medical treatment, yet the claims file does not contain any VA treatment records dated since 2008. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered 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 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records. 38 C.F.R. § 3.159(c). Therefore, the RO/AMC should obtain and associate with the claims file any outstanding VA treatment records pertinent to the issues on appeal. Lastly, the Board finds that an additional VA examination and medical opinion are necessary in this case. A review of the Veteran's service records shows that there were no psychiatric abnormalities found during his February 1961 enlistment examination. He also denied having a medical history of trouble sleeping, nightmares, depression or excessive worry, or nervous trouble of any sort. In May 1961, the Veteran was seen in the mental hygiene clinic for eneuresis (bed wetting). It was noted that this was not amenable to treatment in a military setting, and he was returned to duty. He was later seen in the urology clinic in June 1961 during which he reported that he had had enuresis his entire life and that he wets three to four times a week. A subsequent cystoscopy was normal. An emergency clinic noted dated in January 1962 indicates that the Veteran tried commit suicide by hanging himself with a sheet. He was admitted to the hospital for a neuropsychiatric observation. While the clinical record cover sheet is contained in the claims folder, it does not appear that complete in-patient clinical records were obtained. A Certificate from the Mental Hygiene Consultation Service at Fort Hood dated in January 1962 also indicates that the Veteran was hospitalized for observation following an attempt to hang himself. The Veteran stated that he attempted this because he did not like his unit, disliked the Army, was afraid of tanks, and could not continue. The examiner noted that the Veteran had a long civilian police and juvenile record. During the past ten months of service, he had seen two psychiatrists, one of whom attempted to board him out earlier. Prior to his enlistment, he was also reportedly seen by a psychiatrist, but no definitive treatment was known. Following a review of the Veteran's history and examination, he was diagnosed in service with a chronic and marked emotional instability reaction with antisocial features and episodic despondency manifested by marked feelings of inadequacy, suicide gestures, and fears of aggressive impulses. The disorder was found to exist prior to service and not in the line of duty. The examiner recommended that the Veteran be discharged expeditiously. On a report of medical history completed on January 11, 1962, the Veteran reported having frequent trouble sleeping and depression or excessive worry. The examiner noted that the Veteran was tremulous and jumpy and had attempted suicide. His psychiatric system was noted as abnormal with a reference to the psychiatric certificate. In this case, no psychiatric disabilities were noted during the Veteran's entrance examination, and therefore, the presumption of soundness applies. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See VAOPGCPREC 3-2003; 69 Fed. Reg. 25178 (2004); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Notwithstanding, the presumption of soundness does not apply to personality disorders, as they are not diseases or injuries within the meaning of applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9 (2012); Terry v. Principi, 340 F.3d 1378, 1385 (Fed. Cir. 2003). Except as provided in § 3.310(a), disability resulting from a personality disorder may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127 (2012). On review, the Veteran underwent a psychiatric evaluation during service, and a diagnosis was provided. It is unclear whether this diagnosis is considered a "personality disorder," and the Board is not in a position to make this determination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Private medical records also note a diagnosis of posttraumatic stress syndrome secondary to a motor vehicle accident in the Army. VA medical records also document the Veteran as having depressive disorder and PTSD on the active problem list. A March 2007 mental health note indicates that the Veteran did not meet full criteria for a diagnosis of PTSD and that anxiety disorder, not otherwise specified, appeared to be the most appropriate diagnosis. The Veteran was provided a VA examination in May 2008, and it was determined that he did not meet the criteria for a PTSD diagnosis. The Axis I diagnosis was noncompliance with treatment and malingering, and the Axis II diagnosis was an antisocial personality disorder and borderline intellectual function. However, on review, the May 2008 VA examiner did not have access to all of the records that are requested herein. Additionally, the examination report does not address all questions considered relevant to this appeal. Therefore, the examination is considered inadequate and further examination is warranted. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to verify the Veteran's claimed stressor (see VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, dated in January 2008) through appropriate sources, to include the U.S. Army & Joint Services Records Research Center (JSRRC). 2. The RO/AMC should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), and any other appropriate location, to request complete service personnel records for the Veteran's period of active duty from February 1961 to January 1962. 3. The RO/AMC should request from the Social Security Administration all medical records upon which any claim or award of disability benefits was based. 4. The RO/AMC should obtain any outstanding VA medical records dated from February 2008 to the present. 5. The RO/AMC should contact the NPRC, RMC, and any other appropriate location, to request in-patient clinical records for the Veteran from the U.S. Army Hospital, Fort Hood, Texas, dated in January 1962 6. The RO/AMC should contact NPRC, RMC, and any other appropriate location to request records of all mental health treatment and evaluations (mental health jacket) that the Veteran received during his period of service from February 1961 to January 1962. The AMC/RO is advised that a generic request for service treatment records related to this period of service will not suffice. A specific request must be made for the mental health records. 7. The procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities should be followed. All records obtained should be associated with the claims folder or Virtual VA eFolder. 8. Thereafter, the RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disorders. The claims folder should be made available for review by the examiner. Additionally, all relevant medical records should be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The examiner is requested to address the following: (a) Identify all current psychiatric diagnoses. (b) Review all records related to the Veteran's period of active service and indicate whether the diagnosis shown in January 1962 represents an Axis I disorder or an Axis II personality disorder. (c) If the in-service diagnosis represents a personality disorder, is there any evidence of superimposed psychiatric disorder during service? (d) If the in-service diagnosis is not a personality disorder, is there clear and unmistakable (obvious or manifest) evidence that such a disorder existed prior to service? If so, is there clear and unmistakable evidence that such disorder was not aggravated during service. (e) If the in-service diagnosis is not a personality disorder, and there is not clear and unmistakable evidence that such disorder existed prior to service, is it at least as likely as not that any current Axis I diagnosis is related to the in-service diagnosis or any other event during active military service? (f) If the Veteran is diagnosed with PTSD, the examiner is requested to state whether it is at least as likely as not related to either of the Veteran's verified in-service stressors? In this regard, the AMC/RO should notify the examiner whether or not the January 1962 tank/truck accident at Fort Hood has been verified. Additionally, the examiner is to review the record and provide an opinion as to whether there is any evidence of behavior changes in service, which provides corroborative evidence that the claimed in-service stressor (harassment) actually occurred. Evidence of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. A complete rationale for any opinion expressed should be provided. 9. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner (i.e., if it does not provide answers to each of the questions posed by the Board herein), the AMC/RO should implement corrective procedures. 10. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). 11. Upon completion of the above development, and any additional development deemed appropriate, the RO/AMC should readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. All applicable, laws, regulations, and theories of entitlement should be considered. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ JESSICA J. WILLS 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).