Citation Nr: 1320899 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-00 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified (NOS). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for bilateral hearing loss, tinnitus, lower back pain, and PTSD. In July 2010, the RO granted service connection for bilateral hearing loss and tinnitus. As this award of benefits satisfies the Veteran's appeal of the RO's previous denial of those claims, those issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The issue of service connection for PTSD has been recharacterized to account for the co-existing diagnosis of depressive disorder, NOS, reported in the Veteran's VA mental health treatment records. Young v. Shinseki, 25 Vet. App. 201, 202 (2012); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary in order to complete all indicated evidentiary development to ensure that there is a complete record upon which to decide the Veteran's service connection claims so he is afforded every possible consideration. I. Service Connection for a Low Back Disorder The Veteran contends that he currently suffers from a low back disorder due to a motor vehicle accident in service. He reported chiropractic treatment after discharge from service as well as a diagnosis of degenerative disc disease following a motor vehicle accident in 1996. He contends that the physician told him that the 1996 accident aggravated a pre-existing condition. The Veteran's representative notes that treatment for a back disorder is shown in the Veteran's service records dated from February 1981 and June 1983 and that his medical history report at separation shows a reported history of a low back injury from a motor vehicle accident one year prior. Service treatment records from February 1981 show a complaint of increasing lower back pain with no history of recent trauma or other back problems. On examination he had full range of motion with tenderness and stiffness and was diagnosed with a lumbar area back spasm. Service treatment records from June 1983 show back pain following a rollover accident 10 days prior. X-rays taken at the osteopathic hospital at the time of the accident were reportedly negative. On examination he had full range of motion of the neck with pain and was diagnosed with muscle strain of the cervical spine. He was suspended from special duty for one month due to injuries from the June 1983 motor vehicle accident. The assessment at a follow-up appointment later that month was resolving strain. In early July 1983 the Veteran reported no symptoms from the motor vehicle accident, except for early morning back stiffness. VA treatment records from January 2007 show a history of disc syndrome with recent flare-ups of back pain. Skeletal examination showed loss of lordotic curvature with severe paraspinous muscle spasm. The Veteran was diagnosed with lower back pain. This claim must be remanded for a VA medical examination and medical opinion on the etiology of the Veteran's lower back disorder. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran's VA treatment records show current lower back symptoms, his service records show two instances of treatment for back problems in service, and his accounts of chiropractic treatment after service and the diagnosis he received after the 1996 motor vehicle accident indicate that his current back disorder may be related to his back problems in service in February 1981 and/or June 1983. The circumstances surrounding the Veteran's June 1983 hospitalization following his motor vehicle accident are unclear. On remand, the AMC should contact the Veteran to determine if he was hospitalized at a military or private hospital. Any contact should be documented in the claims folder or electronic records file. If the Veteran received treatment at a military hospital following his motor vehicle accident in 1983, the AMC must make all appropriate efforts to obtain the Veteran's hospital clinical records. See 38 U.S.C.A. § 5103A(b), (c)(1); 38 C.F.R. § 3.159(c)(2), (3) The AMC should also attempt to obtain the required identifying information and authorization to obtain the Veteran's relevant private treatment records, including, his records of hospital treatment in June 1983, his records of chiropractic treatment after discharge from service, and his records for treatment for a back disorder following the 1996 motor vehicle accident. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). II. Service Connection for a Psychiatric Disorder The Veteran contends that he currently suffers from symptoms of PTSD as a result of two incidents in service that caused him to fear for his life. The Veteran's representative contends that VA has not fulfilled its duty to assist the Veteran with the development of the evidence needed to establish his claim as all appropriate records from the Navy, specifically ship logs and unit records, for the purpose of verifying the Veteran's claimed stressors, have not been obtained, and he has not been provided with a VA examination for opinions on the etiology of his diagnosed PTSD and depression. A. Stressor 1: Fear of Hostile Soviet Military Activity The first stressor reported by the Veteran involves his fear of hostile Soviet military activity during the Cold War. The Veteran served as an air crewman on a P-3 Orion aircraft during the Cold War. In September 1983, he was on a detachment to Misawa, Japan, with squadron VP-47. See January 2010 formal appeal (correcting the date of the incident provided in his November 2008 notice of disagreement); November 2008 notice of disagreement. After a mission flight, he was informed that a civilian Korean passenger jet had been shot down by a Soviet military jet, later identified as Korean airliner flight 007. His crew went back out on a search and rescue flight later that same day and was intercepted by two Soviet military jets. The Veteran believed that their aircraft was at risk of being shot down at any time, feared for his life while the Soviet jets followed them during the flight, and had nightmares about the incident afterward. B. Stressor 2: Fear of Plane Crash at Edinburgh Airbase during a Training Mission in Melbourne, Australia, in November 1984 The second stressor described by the Veteran concerns fear of a plane crash during a training mission. In August 1984, the Veteran was deployed to Kadena, Okinawa, with squadron VP-47. Sometime in November of that year his crew was chosen to participate in a joint training mission with the Australians in Melbourne, Australia. The first flight of that mission, his aircraft blew the left main mount causing severe structural damage to the left wing. They checked for damage electronically after being informed by the tower that their aircraft left rubber scattered all over the runway but did not identify the problem. As the flight controls were not damaged, the head pilot, the Commanding Officer, decided to proceed with the mission. After about a ten hour flight, they returned to Edinburgh Airbase in Melbourne, but after several fly-bys of the tower they were informed that they had no rubber left on the left main mounts and damage to the underside of the left wing. They prepared in accordance with their training for a crash landing, and, after circling the runway a few times, the pilot eventually brought the plane in without a major incident. The Veteran stated that on the return flight, and for several flights thereafter, he experienced nervousness and agitation and began having dreams about being on a flight that was going to crash. Since leaving the military, he has only been on two flights over the last 23 years and still occasionally has nightmares about being in a plane crash. C. Mental Health Treatment The Veteran underwent a VA Mental Health Initial Evaluation in March 2013 on referral from primary care following a positive screen for PTSD and reported flashbacks from the Cold War. He reported no prior mental health treatment. He described the in-service stressors described above to the VA clinical psychologist. The VA psychologist found that "although the patient may have experienced or is periodically experiencing symptoms of PTSD, his primary worry during the present interview was concerned about his feelings of anxiety and depression, frustration, anger, being fired from his job, being dependent on wife for financial support and not being able to generate sufficient income to help support the family." The mental health evaluation report shows proposed initial diagnoses of (1) depressive disorder, NOS, and (2) PTSD. The Veteran was referred for additional PTSD treatment. An April 2007 psychiatric nursing note shows scores of 13 on the Beck Depression Inventory (BDI) 2 and 96 on the Mississippi PTSD scale. D. Evidentiary Development Required The two different stressors claimed by the Veteran require two different tracks of development under the regulations governing service connection for PTSD. Under the general provision found at 38 C.F.R. § 3.304(f), service connection for PTSD will be established where (1) medical evidence shows a DSM-IV diagnosis of PTSD, (2) medical evidence shows a link between current symptoms and an in-service stressor, and (3) there is credible supporting evidence that the claimed stressor occurred. There are exceptions to this general rule that relax the evidentiary requirements where certain criteria are met. Subsection (f)(3) reduces "the burden of showing the occurrence of an in-service stressor if the claimed stressor is related to fear of hostile military or terrorist activity, and is consistent with the places, types, and circumstances of the veteran's service," where the remaining requirements of the provision are also met. Stressor Determinations for Posttraumatic Stress Disorder, 74 Fed. Reg. 42,617, 42,618 (Aug. 24, 2009) (proposed rule); see also Nat'l Org. Of Veterans' Advocates v. Sec'y of Veterans Affairs, 669 F.3d 1340, 1344 (Fed.Cir.2012). The September 1983 incident described by the Veteran falls under the purview of subsection (f)(3) as the Veteran describes fear of hostile activity by the Soviet military, and, on the basis of the service personnel records currently of record, the incident is consistent with the place, type, and circumstances of the Veteran's service. Therefore, no further development is needed to corroborate this stressor (i.e., Stressor 1). However, the questions of whether Stressor 1 is sufficient to support a diagnosis of PTSD and whether Stressor 1 is related to the Veteran's current symptoms of PTSD are medical questions requiring examination and assessment of the veteran by a VA psychiatrist or psychologist. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); 38 C.F.R. § 3.304(f)(3). Therefore, on remand, the Veteran should be scheduled for a VA examination. 38 C.F.R. § 3.304(f)(3); see also McLendon, 20 Vet. App. at 81. Further, as the Veteran's current VA treatment records show only initial proposed diagnoses, the examiner should provide current psychiatric diagnoses and, if the diagnoses provided are other than depressive disorder, NOS, and PTSD, reconcile the discrepancy with the initial proposed diagnoses in the March 2013 evaluation. See 38 C.F.R. §§ 3.303(a); 3.304(f); 4.125. None of the exceptions to the standard evidentiary requirements for establishing service connection for PTSD under 38 C.F.R. § 3.304(f) apply to the Veteran's fear of a plane crash resulting from the incident in Australia in August 1984 (i.e., Stressor 2). Therefore, credible supporting evidence of this stressor, other than the Veteran's own statements, is required. Cohen, 10 Vet. App. at 142; but see Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (explaining that there is no need for corroboration of every detail of the stressor). The examiner should also determine whether there is a link between and the Veteran's current symptoms. However, Stressor 2 will not support the Veteran's claim for PTSD unless credible supporting evidence of the November 1984 flight is associated with the evidentiary record. 38 C.F.R. § 3.304(f)(3). Therefore, if the examiner does not find that Stressor 1 is sufficient to support a PTSD diagnosis and/or Stressor 1 is not related to the Veteran's current symptoms, but does find that Stressor 2 is linked to the Veteran's current symptoms of PTSD, additional development to verify the November 1984 flight pursuant to a training mission in Melbourne, Australia, resulting in the fear of a crash at Edinburgh Airbase, will be required. See 38 C.F.R. § 3.304(f). The examiner should also determine whether the Veteran's depressive disorder, NOS, or any other diagnosed psychiatric disorder, is related to service or to PTSD. McLendon, 20 Vet. App. at 81. Lastly, appropriate efforts should be made to obtain any outstanding relevant VA mental health treatment records and associate them with the claims folder or electronic records file. 38 U.S.C.A. § 5103A(b)(3), (c)(2); 38 C.F.R. § 3.159(c)(2), (3). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding relevant VA treatment records from the VA Medical Center in Fresno, California. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Contact the Veteran and ask him to submit any additional relevant private treatment records that he has in his possession or to provide the information necessary for VA to obtain the records. Specifically, ask him to provide the names, addresses, approximate dates of treatment, and, where necessary, record release authorization forms, for (a) the hospital treatment he received following his motor vehicle accident in service around June 1983, (b) the chiropractic treatment received after discharge from service, and (c) the physician who informed the Veteran that he aggravated of a pre-existing back condition after his 1996 motor vehicle accident. Also, as service treatment notes indicate that he received hospital treatment following the 1983 accident, but do not indicate whether the hospital was military or private, ask the Veteran if he can identify whether he was taken to a military or private hospital after the motor vehicle accident in June 1983. Submit all appropriate authorized requests for private records adequately identified for the Veteran and associate all records received with the claims folder or electronic claims file. 3. If the Veteran received treatment at a military hospital in June 1983 and provides the identifying information necessary to search for the records, request his clinical records from the National Personnel Records Center (NPRC) in St. Louis, Missouri, Personnel Information Exchange System (PIES), request code C01, or from any other appropriate source. All efforts must be documented in the claims folder. If VA is unable to obtain the records, notify the Veteran of the specific records that VA was unable to obtain, the efforts VA made to obtain those records, and his responsibility for providing evidence VA was unable to obtain. Also notify him that if he does not submit the records VA was unable to obtain, his claim will be decided on the basis of the evidence of record. 4. Then, schedule the Veteran for an appropriate VA examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests should be accomplished. The examiner is asked to review and consider the Veteran's relevant history, including his lay statements, in addition to the information obtained from testing and examination, and to provide the following information: (a) Diagnose any low back disorder present. (b) Determine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed low back disorder had its clinical onset during active service. (c) Determine whether any diagnosed low back disorder is at least as likely as not (50 percent or greater probability) related to any in-service disease, event, or injury, including his (i) February 1981 in-service treatment for back pain and/or (ii) the June 1983 motor vehicle accident and subsequent treatment for back pain. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to the need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must identify the facts relied on in reaching any opinion provided and provide a full explanation as to why those particular facts support the examiner's conclusions. 4. Then, schedule the Veteran for a VA psychiatric examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated studies, to include psychological testing, are to be conducted. The examiner is asked to review and consider the Veteran's relevant history, including his lay statements, in addition to the information obtained from testing and examination, and to provide the following information: (a) Identify all psychiatric diagnoses under the criteria set forth in the DSM-IV. Specifically, the examiner should determine if the initial diagnoses of PTSD and depressive disorder, NOS, are warranted, and reconcile any discrepancy with the initial proposed diagnoses in the March 2013 evaluation, if the Veteran is diagnosed with psychiatric disorders other than PTSD and/or depressive disorder, NOS. (b) If the examiner diagnoses PTSD, review the Veteran's account of the stressful events in service (described under the headings Stressor 1 and Stressor 2 in the discussion above) and provide the following specific opinions: Is at least as likely as not (50 percent or greater probability) that either the Veteran's fear of being shot down by the Soviet jets following his aircraft in September 1983 or the near-crash he reportedly experienced at Edinburgh Airbase in Melbourne, Australia, in November 1984 adequate to support a diagnosis of PTSD? (c) For all other psychiatric disorders diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder had its onset during service or is related to the Veteran's period of active service. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to the need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must identify the facts relied on in reaching any opinion provided and provide a full explanation as to why those particular facts support the examiner's conclusions. 4. Review the medical examination reports obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. If, and only if, on review of the medical evidence, the Veteran's fear of hostile Soviet military activity (Stressor 1) is insufficient to support to a diagnosis or PTSD and/or is unrelated to any other psychiatric diagnoses and medical evidence does establish a link between his fear of a plane crash during a training mission (Stressor 2) and his current symptoms of PTSD or any other psychiatric diagnoses, take appropriate action to verify the training mission flight and landing trouble at Edinburgh Airbase in Melbourne, Australia, in November 1984. Note that at the time of the incident, his permanent duty base was in Kadena, Okinawa, where he was deployed with squadron VP-47. 6. Finally, readjudicate the claims on appeal. If the claims remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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).