Citation Nr: 1323057 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-43 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to March 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran provided testimony before a Decision Review Officer (DRO) in May 2010; and before the undersigned at the RO in December 2011. A transcript of each hearing is of record and has been reviewed. In March 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. The appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in November 2012. The examiner diagnosed PTSD, the examiner did not specify the stressor supporting the diagnosis, but that the RO had earlier conceded a stressors. Earlier in the examination report the examiner had noted the Veteran had two months of "war zone duty" in Kuwait in 1991. A VA reported in December 2011, reported that the Veteran met the criteria for a diagnosis of PTSD based on combat experiences during Desert Storm. Service personnel records show; however, that the Veteran served in Kuwait from August to December 1991; well after the end of combat operations in Desert Storm in February 1991. The Veteran has; however, reported a number of other stressors, including personal assault, and it is unclear whether any of those would support the current diagnosis of PTSD. See 38 C.F.R. § 3.304(f) (2012) (outlining special development required when PTSD is claimed on the basis of personal assault). Earlier in the appeal period the Veteran was given diagnoses of mood disorder and anxiety disorder. On the most recent examination, the examiner diagnosed only PTSD. In such a case VA is required to obtain a medical opinion as to the earlier diagnosed disabilities were in remission or the earlier diagnoses were made in error. Romanowsky v. Shinseki, No. 11-3272 (Vet. App. Jul. 10, 2013). Earlier VA outpatient records and prior VA examination reports reflect the Veteran's generally reported he saw an Army psychiatrist while stationed in Germany, but he could not remember any specific treatment. A June 1991 entry in the service treatment records notes only that confidential information was obtained from the Veteran; and those records were retained at the local Social Work Service office. A January 1992 entry notes the Veteran was seen by Mental Health at the general dispensary for marital problems. No details are noted. The Board notes that mental health treatment records are not generally filed with a serviceperson's service treatment records. In January 2013, the AMC asked the National Personnel Records Center (NPRC) to provide any clinical records that pertained to the Veteran's mental health, but the request did not provide a timeframe. The NPRC response directed the AMC to "specify the single year you want searched." The AMC requested a search for the dates January 1991 to December 1992. The NPRC second response reflects that only a search for 1992 was conducted, and the search was negative. There is no record that the AMC requested a search of 1991. The Board notes that "clinical" records are usually interpreted to mean records of inpatient treatment. The few service personnel records in the claims file show the Veteran arrived in Germany in August 1990. Thus, a search of the last half of Calendar Year 1990 is also indicated. In addition to the above, the November 2012 Disability Benefits Questionnaire (DBQ) examination report reflects the Veteran reported he started having anger problems in Germany, and he saw a therapist a few times a week for two to three months. No medication was prescribed. The Veteran had not previously reported such extensive in-service mental health treatment. Thus, another attempt at relevant in-service mental health records is appropriate. It does not appear that all of the Veteran's service personnel records have been obtained. He reported further at the November 2012 examination that he received an Article 15 (Nonjudicial Punishment; see 10 U.S.C.A. § 815 (West 2002)) as a result of an argument with his former wife. There are no related documents in the service personnel records included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice that source other than the Veteran's service department records might provide credible supporting evidence of his accounts of personal assault. 2. Ask the NPRC or other appropriate sources to provide any records of mental health treatment, therapy, or counseling, generated during the period August 1990 to March 1992 by either the Social Work Service, 546th General Dispensary, MM 7664, APO NY 09086; or, Mental Health, 546th General Dispensary, Unit 29920, APO AE 09086. Should the NPRC or other entity insist on a single-year search, submit separate requests for 1990, 1991, and 1992. 3. Obtain all of the Veteran's service personnel records extant. 4. Efforts to obtain records in Federal custody should continue until the records are obtained, unless it is reasonably certain they do not exist or further efforts would be futile. If any requested records cannot be obtained, inform the Veteran and tell him what efforts were made to obtain the records and what additional actions will be taken with regards to his claim, including its denial. 5. Ask the examiner who provided the November 2012, examination to review the claims file and answer the following questions: a. What stressors supported the diagnosis of PTSD? b. If one of the supporting stressors involves a personal assault, is there evidence of behavior changes in response to the assault? c. Were the previous diagnoses of anxiety and mood disorders made in error, or have the disorders gone into remission? d. If they went into remission, or if present currently, were the mood and anxiety disorders, at least as likely as not present in service or the result of a disease or injury in service (including any reported stressor)? The examiner should provide reasons for these opinions. If the examiner cannot provide an answer without resort to speculation, the examiner should provide reasons for this inability and state whether the inability to provide the needed opinion is due to missing records or to the limits of medical knowledge. If the examiner who provided the November 2012 opinion is not available, another mental health professional should review the record and provide the needed opinions. 6. If the decision remains in any way adverse to the Veteran, issue a supplemental statement of the case. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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. 2013). _________________________________________________ Mark D. Hindin 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).