Citation Nr: 1324801 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-27 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder, to include depression and alcohol abuse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). The appeal is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to these claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran's claims depend on the occurrence of in-service stressful events that may have caused a current psychiatric disability. In a November 2005 statement, the Veteran reported two stressors, which he believes could have led to his current psychiatric disability including: 1) his presence in an enlisted mens club in Duc Pho at the time another soldier threatened people inside and used his gun to shoot into the ceiling; and 2) driving to Chu Lai for supplies and on the return drive being stopped by an officer in order to transport hurt Vietnamese children and their parents to the medical unit, during which time he saw seriously injured children and heard their cries and their parents' cries. In January 2006 and April 2006, the Veteran reported that he thought the first incident occurred in February 1970 and the second in March or April of the same year. In December 2006, the Veteran issued a statement repeating the second stressor. The details were consistent with those reported in November 2005. In June 2007, the Veteran submitted a statement reporting that the enlisted mens club was operated by the 523d Signal Battalion, and he corrected the date of the incident to be in approximately April 1970. He confirmed that he was not involved in the investigation. The Veteran in this statement also confirmed that the Chu Lai incident occurred in April or May of 1970 and that he does not know the names of anyone involved. In September 2007, the Veteran again reported seeing first hand that the children were bloody and crying, and hearing the parents crying and "hollering." The RO issued formal findings in August 2007 that the information provided by the Veteran with regard to his alleged stressors was insufficient to allow for a meaningful search of the records at the U.S. Army and Joint Services Records Research Center (JSRRC). Although incomplete, the Board finds that the information provided is adequate to allow further development of the Veteran's claim, and that the AMC should attempt to verify these alleged stressors with the JSRRC. See Zarycki v. Brown, 6 Vet. App. 91 (1993). In attempting to obtain this evidence, the AMC should inform the Veteran that his cooperation is essential to this task. In cases such as this one, [t]he factual data required, i.e., names, dates and places, are straightforward facts and do not place an impossible and onerous task on [the Veteran]. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If, upon remand, the AMC is unsuccessful in developing evidence to verify the Veteran's alleged stressors, the AMC must inform the Veteran that he may submit "other credible supporting evidence," such as the statements of fellow service members who witnessed the stressful events that the Veteran alleges he experienced in service. 38 C.F.R. § 3.304(f) (2012); Doran v. Brown, 6 Vet. App. 283, 289 (1994). While the Veteran in this case has been informed of this option and has provided additional information since such notification, the Board finds that since the matter is being remanded, the Veteran should be provided one more opportunity to submit all information that he can recall related to his reported stressors prior to submission of the information to the JSRRC. Certain federally controlled records are not a part of the evidence of record. In the "Brief Background Information" section of the April 2011 VA examination report, the examiner notes that the Veteran was in receipt of Social Security benefits. This report indicates that he stopped working in 2008, and also notes that at the time of the examination he was 61 years old. Thus, the Veteran stopped working at approximately age 58, which indicates that if he was receiving benefits from the Social Security Administration (SSA) at that time, then it would have been due to disability. Although the AMC, according to the March 2012 supplemental statement of the case, reviewed the April 2011 VA examination report, there is no indication in the record that the AMC requested the Veteran's records from SSA. Generally, when VA is on notice that there are SSA records, it must obtain and consider them. See Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). As such, the AMC must attempt to obtain all documentation, including treatment reports, associated with the Veteran's application for SSA disability benefits. As to VA outpatient treatment records, the evidence of record includes records from the Twin Ports VA Outpatient Mental Health Clinic, most recently dated in May 2007. No updated records are included in the evidence of record. The April 2011 VA examiner discussed records dated in August 2009 pertaining to depression, as well as records dated through February 2011 related to therapy. These records, as well as any records of treatment since February 2011, are not of record and therefore, are not available for the Board's review. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a 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). Under these circumstances, the AMC must, with the assistance of the Veteran, obtain all relevant VA clinical records dated since May 2007. Once the record is complete, the Board finds that supplemental VA medical opinion is necessary if any aspect of the reported stressors are confirmed. In particular, should any aspect of the Veteran's stressors be confirmed, the April 2011 VA examiner should be required to reassess the current state of the Veteran's psychiatric disability, to include a determination as to whether any current psychiatric disability is due to the confirmed stressors. In this regard, the Board also recognizes that the April 2011 VA examiner noted that the Veteran demonstrated psychometric evidence that was "mixed in terms of PTSD, but it is suggestive of mild to moderate anxiety and depression." The examiner went on to rule out a current diagnosis of PTSD, confirm a current diagnosis of anxiety disorder, not otherwise specified, but made no mention of a diagnosis associated with the symptoms of depression. Thus, if stressors are confirmed, such that return of the claims file to the April 2011 examiner for supplemental opinion is appropriate, the examiner must, in addition to assessing etiology based upon confirmed stressors, assess the appropriate diagnosis related to symptoms of depression. If the April 2011 examiner is unavailable, or determines that new examination is required in order to answer the questions posed by the Board, then a new examination should be scheduled. Accordingly, the case is remanded for the following action: 1. The AMC must contact the Veteran to request that he identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him for any psychiatric disorder during the course of this appeal. Based on his response, the AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the AMC must obtain the Veteran's updated treatment records since May 2007 from the Twin Ports VA Outpatient Mental Health Clinic. The AMC must also contact SSA for the purpose of obtaining all documentation associated with the Veteran's claim for SSA disability benefits. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain the named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The AMC must request from the Veteran a comprehensive statement containing as much detail as possible regarding the stressors to which he alleges he was exposed in service. The Veteran must be asked to provide specific details of the claimed stressful events that he experienced during service, such as dates, places, detailed description of events, and any other identifying information concerning any other individuals involved in the events, including their names, ranks, and units of assignment, or any other identifying detail. The AMC must ask the Veteran to comment specifically on the approximate date of which each incident occurred that he describes, for example, whether they occurred in the winter, spring, summer, or fall. The Veteran must be advised that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he must be asked to be as specific as possible because without such details an adequate search for verifying information cannot be conducted. He must also be advised to submit any verifying information that he can regarding the stressors he claims to have experienced in service, such as statements of fellow service members. The Veteran must be further advised that failure to respond may result in adverse action. 3. Thereafter, whether or not the Veteran responds, the AMC must thoroughly review the Veteran's claims file and prepare a summary of the Veteran's reported stressors. The AMC must send this summary and the information of record regarding the Veteran's service, including copies any records relevant to the PTSD and depression claims, to JSRRC, and must ask JSRRC to provide any available information that might corroborate the Veteran's alleged inservice stressors. If JSRRC is unable to provide the specific information requested, they must be asked to direct the AMC to any additional appropriate sources. All documentation received by the AMC from JSRRC must be associated with the claims file. The AMC must ask JSRRC to discuss in its response what the records show with regard to the stressors identified by the Veteran. 4. If, and only if, adequate verification of any of the Veteran's reported stressors is obtained, the Veteran's claims file must be returned to the April 2011 VA examiner for a supplemental opinion to ascertain the etiology of any psychiatric disorder found. The claims file and all electronic records, to include on Virtual VA, must be made available to the VA examiner, and the examiner must specify in the supplemental opinion that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must include an assessment of the proper diagnosis related to the Veteran's depression symptoms, and must comment as to whether confirmation of the Veteran's stressors and review of updated treatment records alters the opinion as to whether he has PTSD. The AMC must specify for the examiner the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those events may be considered for the purpose of determining whether the Veteran was exposed to a stressor in service. The examiner must discuss whether there is a link between any current psychological symptoms experienced, to include any PTSD or anxiety or depressive disorder diagnosed, and one or more of the in-service stressors found to be established by the record. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 5. If, and only if, adequate verification of any of the Veteran's reported stressors is obtained, and if the April 2011 VA examiner is unavailable for a supplemental opinion, or if the examiner deems a new examination necessary, the Veteran must be afforded a new VA psychiatric disorders examination. The claims file and all electronic records, to include on Virtual VA, must be made available to the VA examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests, including psychological testing and evaluation, must be accomplished. The examiner must integrate the previous psychiatric findings and diagnoses with the current findings to obtain a true picture of the nature of the Veteran's psychiatric status, to include a diagnosis appropriate for consideration of the Veteran's depressive symptoms, as well as commentary as to whether confirmation of the Veteran's stressors and review of updated treatment records alters the opinion as to whether the Veteran carries a diagnosis of PTSD. The AMC must specify for the examiner the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those events may be considered for the purpose of determining whether the Veteran was exposed to a stressor in service. Following examination of the Veteran, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must discuss whether there is a link between any current psychiatric symptoms experienced, to include any PTSD, anxiety, or depressive disorder diagnosed, and one or more of the in-service stressors found to be established by the record. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 6. If the Veteran is afforded another VA examination, the AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. After the requested supplemental opinion has been obtained, or examination completed, the AMC must review the examination report to ensure that it is in complete compliance with the directives of this remand. An examination report must be returned to the examiner if it is deficient in any manner and the AMC must implement corrective procedures at once. 8. Thereafter, the AMC must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).