Citation Nr: 1319765 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 12-01 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired chronic psychiatric disorder, claimed as post-traumatic stress disorder (PTSD) and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from March 2001 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Winston-Salem, North Carolina, Regional Office of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for an acquired chronic psychiatric disorder, claimed as PTSD and anxiety. The agency of original jurisdiction over the present appeal is the Detroit, Michigan, VA Regional Office (RO). In May 2012, the Veteran, accompanied by his representative, appeared at the RO before the undersigned traveling Veterans Law Judge to present evidence and oral testimony in support of his claim. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For the reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. REMAND The Veteran contends that he is entitled to VA compensation for an acquired chronic psychiatric disorder, which he claims to be PTSD and anxiety. He served on active duty in the United States Marine Corps from March 2001 to March 2005. His military records reflect that he was deployed to Korea and Japan during active duty, but that he was never deployed to Iraq, Afghanistan, or any other combat zone, and did not participate in armed combat against enemy forces. The Veteran's service treatment records do not show a diagnosis of a chronic Axis I psychiatric disorder or treatment for psychiatric complaints in active duty. Psychiatric assessment was normal on pre-enlistment examination in February 2001. However, a November 2001 Health Enrollment Assessment Review (HEAR) conducted during active duty reflects that the Veteran reported considerable stress at the workplace and at home and of having psychiatric symptoms of depression and anxiety. The latest in-service psychiatric screening of the Veteran that is of record was conducted in November 2003, which reflects normal psychiatric findings. The Board notes, however, that the Veteran was not psychiatrically examined thereafter in conjunction with his separation from active duty in March 2005. The Veteran now presents competent oral and written testimony of having symptoms of anxiety and depression ever since active service. He has also submitted three lay witness statement from individuals who reported that they knew the Veteran personally prior to his enlistment in the Marine Corps and attested to having observed a significant change in the Veteran's personality and outward demeanor after separating from active duty, going from a happy, vibrant, outgoing and caring person to one who was withdrawn, angry, and given to displays of inappropriate or erratic behavior in public. Post-service VA medical treatment records reflect that as of 2008, the Veteran is being treated for chronic psychiatric diagnoses that include major depressive disorder, generalized anxiety disorder, depression, and dysthymia. The psychiatric treatment records also reflect a positive PTSD screening in February 2010, and a single notation of an Axis I PTSD diagnosis in March 2010 by a VA psychiatrist that was broadly associated with the Veteran's military service, although not linked to any specific stressor or event. The PTSD diagnosis does not appear again in subsequent clinical reports, although an April 2010 counseling report reflects that the Veteran continued to present PTSD symptoms. These records also reflect that the Veteran reported having feelings of depression and survivor's guilt associated with his having been ordered to remain behind instead of being deployed to combat duty in Iraq or Afghanistan alongside his fellow Marines, some of whom were reportedly close friends who were killed in combat overseas. However, the Veteran has not been provided with a VA psychiatric examination for a nexus opinion addressing the likelihood that his current psychiatric diagnoses are related to his military service. In this regard, the Veteran and his representative have expressly requested that such an examination be provided to the claimant in their oral arguments and written statements submitted to the Board at his May 2012 hearing. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The four elements discussed in the above test prescribed by the Court have been met in the present case: (1) the Veteran has been presently diagnosed with several chronic Axis I psychiatric disorders, (2) the report of the November 2001 Health Enrollment Assessment Review reflects the presence of depression and anxiety symptoms in service, which the Veteran contends to demonstrate onset of his current psychiatric diagnoses, particularly the depression and generalized anxiety disorder, in active duty, and (3) the Veteran and his lay witnesses presented competent statements, respectively, as to the Veteran's internally perceivable psychiatric symptoms and his externally observable behavior pre- and post-service, but in the absence of a VA psychiatric examination that presents an objective nexus opinion addressing the likelihood of a relationship between the Veteran's Axis I diagnoses and his military service, there is (4) insufficient evidence to decide the case. Therefore, in view of the foregoing discussion, the Board finds it appropriate to remand the current appeal for such an examination. The Board notes that at the May 2012 hearing, the Veteran reported that post-service, in the summer of 2005 or 2006, he was called up by the United States Marine Corps as a reservist for possible activation and deployment to Iraq or Afghanistan, but that he was ultimately deemed unqualified for deployment. He reported that he did not possess any copies of medical records relating to this call-up. Therefore, in the interests of ensuring that the evidence is as fully developed as possible, the RO/AMC should conduct the appropriate actions to attempt to obtain any records that may exist that relate to the Veteran's call-up by the United States Marine Corps in the summer of 2005 and/or 2006 for possible activation and deployment overseas. Accordingly, the case is REMANDED to the RO/AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The VA clinical evidence of record is current up to 2012. The RO should provide the Veteran with the opportunity to submit additional evidence in support of his claim, or otherwise identify relevant psychiatric treatment sources, both private and VA. After obtaining the appropriate waivers, the RO should attempt to obtain copies of any such records not already associated with the Veteran's claims file. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard. 2. The RO/AMC should conduct the appropriate actions to obtain copies of any medical and/or administrative records relating to his reported call-up as a reservist by the United States Marine Corps in the summer of 2005 or 2006 for possible activation and deployment overseas. Any records obtained from this development should be associated with the Veteran's claims file. 3. After the foregoing development has been accomplished, the Veteran should be scheduled for a VA psychiatric examination by the appropriate clinician. The Veteran's claims file should be reviewed by the examiner in conjunction with this examination and he/she must state in his/her report that the Veteran's claims file was reviewed. The examining clinician must determine the Veteran's present Axis I psychiatric diagnosis/diagnoses in the context of his relevant clinical history. Thereafter, the reviewing clinician should provide nexus opinions, presented in the context of the medical record, with complete supportive rationales, addressing the following: (a) The clinician shall identify all current psychiatric diagnoses, to include PTSD. (b) The clinician shall specifically comment on whether the Veteran has a diagnosis of PTSD consistent with the criteria for a diagnosis under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The opining clinician should note the PTSD diagnosis presented in the medical record, to include (but not limited to) the March 2010 VA psychiatric treatment report, and express an opinion either concurring with the diagnosis or rejecting the diagnosis, discussing in detail why he/she has arrived at this conclusion. If the clinician concludes that the Veteran has a PTSD diagnosis, he/she should present an opinion as to whether it is at least as likely as not that the Veteran's PTSD is the result of any claimed in-service stressor event. If a diagnosis of PTSD is deemed appropriate, the clinician must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). If a diagnosis of PTSD is not rendered, the clinician should reconcile his/her opinion and diagnostic conclusions with the Veteran's clinical history of psychiatric treatment and evaluation, including (but not limited to) the March 2010 psychiatric treatment report and other treatment records that present a diagnosis of PTSD. (c) If the clinician determines that the Veteran has an Axis I psychiatric diagnosis other than PTSD, the clinician is requested to render an opinion as to whether it is at least as likely as not that any such diagnosed psychiatric disorder had its onset in service or is otherwise etiologically related to the Veteran's active service, including his reported survivor's guilt over not being selected for combat deployment with his fellow Marines, some of whom died while serving abroad in a combat zone. In doing so, the clinician must address the relevance of the November 2001 HEAR report in the Veteran's service medical records, showing that the Veteran was noted to have depression and anxiety symptoms in service, and acknowledge any reports of a continuity of psychiatric symptoms since service. In providing the requested opinions, the clinician must consider and reconcile any additional opinions and diagnoses of record or any contradictory evidence regarding the above. A rationale for all requested opinions shall be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he /she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 4. After the above nexus opinions have been obtained, the RO shall readjudicate the claim of entitlement to service connection for an acquired chronic psychiatric disorder (to include PTSD and anxiety) in consideration of the additional evidence obtained. If the claim is not granted to the Veteran's satisfaction, he should be provided with a supplemental statement of the case and provided with sufficient opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Board intimates no opinion as to the outcome in this case by the action taken herein. 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). _________________________________________________ JONATHAN B. KRAMER 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).