Citation Nr: 1322428 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-49 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and panic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from December 1970 to September 1972, October 1975 to October 1977, and from January 1980 to July 1992. This case comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Based on a review of the record, and in light of the holding by the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled), the Board has broadened the issue to include major depression and adjustment disorder. As will be discussed in greater detail below, these disorders will be combined with the claim of entitlement to service connection for PTSD and the issue is recharacterized as that of a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and panic attacks. 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 As an initial matter the Board notes that effective July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39845 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010. To date, the Veteran is not shown to have been notified of these amended regulations. Therefore, a remand in this case is required. As noted, the claims file contains treatment records reflecting diagnoses of PTSD, major depressive disorder, and panic disorder. In the course of his appeal, the Veteran has made various assertions concerning his PTSD stressors. He stated that he was adversely affected by a July 1986 murder/suicide which occurred while he was serving as Officer of the Day (OOD). He added, however, that he did not personally witness the incidents. See VA Form 21-4138, dated in June 2008. However, he has asserted that the aftermath was stressful, and has requested that the unit records and log books be obtained. The Veteran also stated on his written stressor statement dated in January 2008 that he had been part of a small 17 man detachment in Knetra, Morocco during the August 1972 government coup. He noted that the Moroccan Air Force attempted to assassinate the King, and as a result American Personnel were placed in lockdown. He then reportedly escaped from this lockdown, and later re-united with his unit, at which time he found that all the Moroccan locals with whom he had been working had been lined up and killed. While conceding that he never participated in "combat operations" (see VA Form 21-4138, dated in August 2008), the Veteran has claimed on more than one occasion that a Russian tank entered his position while serving in Morocco and pointed its gun at him. See VA outpatient treatment records dated in November and December 2005. The Veteran has reported that he was assigned to NMCB-10 during the period in question. The Board takes judicial notice that the coup attempt in Morocco occurred approximately August 16, 1972. He has also reported that crew members of his unit were killed in the Philippines. See VA treatment record dated in November 2005. Medical records on file also include several VA outpatient treatment records which contain diagnoses of PTSD, major depressive disorder, and panic disorder. See records dated in December 2005 and April 2006. Both records show that the examiner commented that the PTSD was related to "military trauma." This cited trauma however is not noted to be associated with a verified stressor. Concerning the Veteran's claimed stressors; the RO found in August 2008 that insufficient evidence was of record to corroborate the Veteran's claimed stressors. This development, however, seems to have been limited to the Veteran's having claimed to have been adversely affected by a murder/suicide. The reported episode where a tank pointed its gun at the Veteran and the reported killing in the Philippines were not addressed. The duty to assist also 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. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), 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," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, there is evidence of current psychiatric disabilities (albeit, the most recent VA medical evidence on file is dated in July 2008; five years ago); evidence suggesting an in-service event, injury or disease; and evidence suggesting that the current disability might be related to service. However, the evidence is insufficient to decide the case. Thus, a VA examination is necessary. As noted, the most recent medical evidence on file is dated in July 2008. Up to this time the Veteran was in receipt of fairly regular VA treatment for his psychiatric-based disorders since 2004. Since this case is being remanded anyway, the RO/AMC should seek to obtain any and all outstanding VA outpatient treatment records dated since July 2008. In this regard, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a corrective notice that includes information on how to substantiate all the elements of the claim for service connection for PTSD pursuant to 38 C.F.R. § 3.304(f)(3), effective July 12, 2010. The Veteran should be afforded an appropriate period of time for response to all written notice and development as required by VA law. 2. The RO/AMC should obtain any VA treatment records, dating from July 2008 to the present. All obtained records should be associated with the Veteran's claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 3. The RO/AMC should send the Veteran a letter asking that he provide further clarifying information, narrowing the dates, locations, names of other persons involved, etc. relating to his claimed stressor of having the gun of a tank pointed at him, the evacuation from Morocco, as well as the claim of crew members being killed in the Philippines. 4. The RO/AMC should then prepare a summary of the PTSD stressors addressed in 3. above, as well as the reported murder/suicide in July 1986. The summary and all associated documents should then be sent to the Joint Services Records Research Center (JSRRC), National Archives and Records Administration (NARA), and/or other record custodian(s) to attempt to corroborate the Veteran's claimed stressors. Unit records from NMCB-10 for the periods in question should be obtained, to include August 1972. Records from the Veteran's unit at the Naval Facility in Coos Head/Coos Bay, Oregon, as well as log books, for the month of July 1986 (when the Veteran alleges a murder suicide occurred) should also be obtained. 5. After the above has been completed to the extent possible, the RO/AMC should schedule the Veteran for a VA psychiatric examination, to be conducted by a VA psychologist or psychiatrist, to determine the identity and etiology of any psychiatric disorder that may be present to include PTSD. 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. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for PTSD and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to provide opinions on the following: a. Whether the Veteran has PTSD and if so, please explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner must opine as to whether the Veteran's reported stressor of fear of hostile military or terrorist activities is sufficient to cause his symptoms, as well as whether his PTSD diagnosis is related to his reported stressor. b. If the Veteran is diagnosed with any other psychiatric disorder, then the examiner is requested to provide an opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater probability) that such psychiatric disorder is related to active military service to include any incident in service that would be consistent with the circumstances, conditions or hardships of such service. In determining whether the Veteran has PTSD or any other psychiatric disorder related to service, the examiner is asked to review and discuss the lay statements from the Veteran in the claims file and during the examination and the medical evidence of record to include the VA medical records. The examiner should provide an explanation for all conclusions reached. 6. The Veteran is hereby 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 a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 7. Thereafter, the RO/AMC should readjudicate the service connection claim (now characterized as that of a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and panic disorder). If the benefit sought on appeal remains denied, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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 or by the Court 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 MARTIN 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).