Citation Nr: 1322029 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-01 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to September 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for PTSD. This case was previously before the Board in October 2010 and again in January 2012 and was remanded for additional development of the record and/or to ensure due process. As noted in the previous Board remands, the issue has been recharacterized in accordance with the decision of the United States Court of Appeals for Veterans Claims in Clemons v. Shinseki, 23 Vet. App. 1 (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 Following a VA psychiatric examination in February 2012, the examiner diagnosed alcohol dependence. In her discussion, the examiner commented she did not feel comfortable in diagnosing any other psychiatric disorder given the Veteran's unreliability as an historian and his obvious efforts in the past and on the examination to misrepresent information. In describing the history of present illness, the examiner appears to have summarized findings set forth in a copy of a Board decision in the claims file concerning another Veteran. As one example, the history noted the Veteran was a convicted felon, but it is apparent this information was taken from the Board decision that involves a different Veteran. There is no evidence in the claims folder suggesting the Veteran in this case is a felon. Thus, the fact that such false information played any role in the examiner's conclusion invalidates the entire examination. This other BVA decision does include information concerning service in the DMZ during the time period that the Veteran was in Korea. Although not entirely clear, it may be that this other Board decision was included with the additional evidence submitted by the Veteran at the October 2011 Board hearing for purposes of supporting the Veteran's testimony regarding enemy actions along the DMZ. At any rate, it appears that the VA examiner formed a medical opinion based, at least in part, on information pertinent to another veteran. As noted in the January 2012 remand, the Veteran also alleges his PTSD is due to fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3) (2012). The Veteran's service personnel records confirm that he served in Korea along the demilitarized zone (DMZ) from June 6, 1973 to November 4, 1974. A Chronology of Incidents from the Korean War Veterans National Museum and Library compiled by the Center for Military History reflects that hostile fire pay terminated for Korea on September 1, 1973; that 120 North Korean guards attacked U.S. personnel in the Joint Security Area (JSA) in March 1974; that the Republic of Korea Army uncovered a North Korean-built underground tunnel extending 1,000 yards into the United Nations Command (UNC) side of the armistice zone on November 15, 1974; and that an enemy device exploded in the tunnel complex, killing a U.S. naval officer and wounding four U.S. servicemen on November 20, 1974. See http://www.imjinscout.com/DMZ_History2.html. Finally, the Board notes the Veteran has been diagnosed with dysthymic disorder and depression, and that it might be secondary to physical pain. Service connection is in effect for restrictive pulmonary tuberculosis and genitourinary tuberculosis. While the Board regrets any additional delay, it is unavoidable in this case. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability. The claims file must be made available to the examiner and reviewed in connection with the examination. The examiner is requested to provide an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran has any psychiatric disability, to include PTSD. a) If the examiner diagnoses PTSD, he should provide an opinion as to whether it is related to any verified stressor and/or to Veteran's fear of in-service hostile military activity. b) As to any psychiatric disorder other than PTSD found to be present, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or higher) causally related to the Veteran's active duty service. c) In addition, the examiner should provide an opinion whether it is at least as likely as not (50 percent probability or higher) that the Veteran's restrictive pulmonary tuberculosis or genitourinary tuberculosis caused or aggravated (permanently worsened the underlying disorder beyond its normal course) a diagnosed psychiatric disability. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ ALAN S. PEEVY 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).