Citation Nr: 1320751 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-22 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to September 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for PTSD. In August 2012 the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. Although the claim was originally characterized as entitlement to service connection for PTSD, the Veteran has also been diagnosed with adjustment disorder with depressed mood. To adequately reflect the claim, the issue has been recharacterized accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they contain VA treatment records relevant to the issue on 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 Board's review of the record reveals that further RO/AMC action on the claim on appeal is warranted. The Veteran is claiming service connection for PTSD due to an incident that occurred while he was on active duty serving in Korea in 1973. He has stated that while walking in a local village he was assaulted by a Korean national with a broken beer bottle, and during this attack the man slashed his chin and chest, causing large lacerations. In his August 2012 Board hearing, the Veteran explained that his behavior in service became increasingly problematic after this attack, and that his "attitude and demeanor just changed." He stated that since the time of the attack, he has experienced nightmares and problems socializing with others. While there is no explicit mention of the assault the Veteran describes in his service treatment records (STRs) or personnel records, his STRs do indicate that in July 1973 he was treated for a 6.5 inch laceration on the upper left side of his chest and a 2 inch laceration on his chin. The only description of the cause of the lacerations in the record is that they "were believed to be from a piece of glass." The Veteran's personnel records also show that he did begin to manifest problematic behavior only in the latter half of his time in service. These records show that between November 1973 and his discharge in September 1975, he was absent without leave on several occasions, including for approximately one month in June 1974, and received three Article 15 actions. An August 1975 letter recommending the Veteran for discharge stated that he had "a lack of motivation, poor attitude, inability to accept instructions from superiors and failure to demonstrate promotion potential." Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the Board finds that the Veteran's statements regarding the assault by a Korean national are supported by evidence of record, that of the July 1973 STR, and appear to be sufficiently credible for the purpose of determining whether the Veteran now has PTSD as a result of this stressor event. The Veteran's VA treatment records show that he has been receiving treatment and counseling for PTSD since at least November 2009, when he was admitted to an inpatient rehabilitation program at the Lyons Campus of the VA New Jersey Health Care System. While there, the Veteran was diagnosed and treated for PTSD. Since then, the Veteran has continued receiving treatment from a psychiatrist for PTSD and has attended group counseling sessions for PTSD at the East Orange Campus of the VA New Jersey Health Care System. In June and July 2011, the Veteran was also given a diagnosis of adjustment disorder with depressed mood. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. In the current case, the record contains evidence sufficient to support the Veteran's contention regarding the occurrence of his claimed stressor event. Personnel records also indicate that the Veteran may have undergone a change in mental state or behavior from November 1973 to the end of his time in service. Recent VA treatment records show that the Veteran has been diagnosed with and is undergoing psychiatric treatment for PTSD. Under these circumstances, the Board finds that examination of the Veteran to obtain a medical opinion by a VA psychologist or psychiatrist, based on full consideration of the Veteran's documented medical history and assertions and supported by clearly stated rationale, is needed to resolve the claim. The Board notes that the Veteran's VA treatment records indicate that he has also claimed as stressors events that allegedly happened to him while serving in Vietnam, including shooting enemy soldiers and seeing friends killed in combat. The Veteran's personnel records do not show that he had any service in Vietnam, and any claimed events that occurred in Vietnam are not supported by any credible evidence of record, nor has the Veteran indicated that any such evidence may exist. The examiner should therefore consider only the Veteran's claimed in-service assault by a Korean national and not any other uncorroborated, claimed in-service event or any event occurring after the Veteran's separation from service. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as this claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. Additionally, as discussed above, the record indicates that the Veteran has been receiving frequent psychiatric treatment at the East Orange and Lyons Campuses of the VA New Jersey Health Care System. Currently, the record contains his VA treatment records from to February 2009 to March 2012. As there may be additional treatment records directly pertinent to the current issue, all outstanding VA treatment records from the current period on appeal should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the East Orange and Lyons Campuses of the VA New Jersey Health Care System all outstanding, pertinent records of mental health treatment of the Veteran during the period on appeal. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) and associate all records with the claims file. 2. After associating all outstanding, pertinent records related to the Veteran's claim, schedule a VA mental health examination by a psychiatrist or psychologist. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. The examiner must be provided access to the Virtual VA claims file, if necessary. Based on a review of the record and examination of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has PTSD related only to the stressor event supported by evidence of record, that of being assaulted by a Korean national in 1973. The opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. The examiner should consider and discuss the Veteran's documented change in behavior after the 1973 assault and whether this may indicate symptoms of mental disorder at that time. The opinion should include a discussion of whether the claimed stressor is sufficient to support a diagnosis of PTSD and how the diagnostic criteria for PTSD are met. In addition, any other psychiatric impairment found should be set out. If a diagnosis of a psychiatric disorder other than PTSD is found, the examiner is asked to opine as to whether it is at least as likely as not (50 percent chance or greater) that the psychiatric disorder had its onset during the Veteran's period of service or is otherwise etiologically related to the Veteran's period of service. The examiner should utilize the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in arriving at diagnoses and identify all existing psychiatric diagnoses. The examiner should again consider and discuss the Veteran's documented change in behavior after the 1973 assault. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claims. 38 C.F.R. § 3.655. 4. The RO/AMC should review any examination report and medical opinion to ensure that it is in complete compliance with the directives of this remand. If any report is deficient in any manner, the RO/AMC must implement corrective procedures. 5. Thereafter, the RO/AMC should readjudicate the claim. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ STEPHANIE L. CAUCUTT Acting 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).