Citation Nr: 1319895 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-43 227 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim seeking service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include anxiety and depression. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from August 1988 to August 1992. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the RO in Salt Lake City, Utah. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the 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 Regarding the issue of whether new and material evidence has been received to reopen a claim seeking service connection for PTSD, a remand is required for issuance of statement of the case and to provide appropriate notice. The April 2009 rating decision addressed not only the issue of entitlement to service connection for an acquired psychiatric disability, but also denied an application to reopen a claim seeking service connection for PTSD. The June 2009 notice of disagreement submitted by the Veteran's representative referred only to service connection for anxiety and depression, and consequently, the July 2009 statement of the case included only the issue regarding a psychiatric disability other than PTSD. However, the VA Form 9, submitted by the Veteran in November 2009, within the appeal period, includes the Veteran's assertion that his anxiety and depression is "from PTSD being in a combat zone." This constitutes a timely notice of disagreement regarding the denial of reopening of service connection for PTSD. Where a notice of disagreement is filed, but a statement of the case has not been issued, the Board must remand the claim to the agency of original jurisdiction (AOJ) to direct that a statement of the case be issued. See 38 C.F.R. §19.9(c)(2012); Manlincon v. West, 12 Vet. App. 238 (1999). In addition, the Board notes that, among the Veteran's claimed PTSD stressors is an incident in which a fellow service member tackled the Veteran, held his face in the sand and attempted to suffocate him. In a September 2008 VA PTSD intake examination, the Veteran reported that he was physically abused in the Marines. However, it does not appear that the Veteran has been provided notice of the evidence necessary to substantiate a PTSD claim based on a personal assault. In Patton v. West, 12 Vet. App. 272 (1999), the United States Court of Appeals for Veterans Claims held that special consideration must be given to claims for PTSD based on sexual assault. In particular, the provisions in M21-1MR, Part III, 5.14(c), which address PTSD claims based on personal assault were held to be substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). Paragraph 5.14c states that, in cases of personal assault, development to alternate sources for information is critical. There is provided an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include medical records, military or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. See M21-1MR, Part III, 5.14(c)(8). Regarding the claim seeking service connection for an acquired psychiatric disability other than PTSD, a remand is required to ensure that there is a complete record upon which to decide the claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). In order to establish service connection for a claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to a current disability, it is uncontroverted that the Veteran has been diagnosed with anxiety NOS and depression NOS. Concerning the question of in-service disease or injury, while the Veteran was not treated for psychiatric symptoms during service, and while he was found to be psychiatrically normal during service, on the report of medical history at separation, the Veteran indicated that he had experienced depression or excessive worry. He elaborated to the examiner that his wife stresses him out. The examiner noted no constitutional symptoms of depression and no suicidal ideation. On March 2009 VA PTSD examination, the Veteran reported that his depression began 1992 while he was in the service. He reported that, when he came back from the service, his ex-wife told him that he was not the same person that she married. A VA clinician submitted a letter in June 2009 noting that she was treating the Veteran for depression, anxiety, and sub-clinical PTSD, and that she had recommended that the Veteran seek service-connected disability for anxiety and depression. While this is not a nexus opinion, it suggests her belief that the Veteran's depression and anxiety may be related to service. The Veteran has been provided a VA examination; however, a nexus opinion was not requested or provided. In fact, it would appear that the examination was provided inadvertently, in response to the wording of the Veteran's claim, which specified that he was seeking an increased rating for depression and anxiety. The RO apparently did not verify whether service connection was in effect for a psychiatric disability and scheduled a VA examination to evaluate the severity of the disability. In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Given the competent evidence of symptoms of depression and anxiety in service and the current diagnoses of depression NOS and anxiety NOS, as well as the June 2009 letter from a VA clinician, which suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, the Board finds that a VA examination with medical nexus opinion is required to determine whether either current psychiatric disability is causally related to service. Accordingly, the appeal is REMANDED for the following action: 1. Ensure that proper notice is provided to the Veteran regarding the evidence necessary to reopen and substantiate claim for service connection for PTSD based on an alleged personal assault. 2. Issue a statement of the case pertaining to the issue of whether new and material evidence has been received to reopen the claim seeking service connection for PTSD, and in connection therewith, provide the Veteran with appropriate notice of his appellate rights. The Veteran is reminded that, to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed after receiving the statement of the case. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disability other than PTSD. The relevant documents in the claims file should be made available to the VA examiner. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any acquired psychiatric disability (other than PTSD) is causally or etiologically related to the Veteran's active service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence 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. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Readjudicate the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The issue of entitlement to service connection for an acquired psychiatric disability other than PTSD should then be returned to the Board for further consideration, if otherwise in order. If, and only if, the Veteran perfects the appeal as to the application to reopen service connection for PTSD, that issue must also be returned to the Board for appellate review. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the associated claim. See 38 C.F.R. § 3.655 (2012). 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 issues 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). _________________________________________________ MICHAEL A. HERMAN 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).