Citation Nr: 1325116 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 05-29 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than bipolar disorder, to include posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from March 1961 to February 1967. He served in Vietnam from December 1966 to February 1967. He also served in the U.S. Air Force Reserve in March 1967, and in the Army National Guard of Kentucky from January 1976 to September 1977. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the Veteran's case was subsequently transferred to the Louisville, Kentucky RO. In October 2008 the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Central Office in Washington, D.C. A transcript of this hearing is associated with the claims file. In March 2009, the Board remanded the claim of entitlement to service connection for PTSD to the agency of original jurisdiction (AOJ) for additional development. In its March 2009 remand, the Board characterized the Veteran's claim for service connection for psychiatric disability as limited to PTSD. In this regard, the Board noted in January 2012 that the Veteran's former representative, in January 2007, expressly withdrew a claim for service connection for bipolar disorder. 38 C.F.R. § 20.204 (2012). The Board also noted, however, that the Veteran has been diagnosed with psychiatric disabilities other than PTSD and bipolar disorder, to include a mood disorder. Accordingly, and in consideration of the holding of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), in January 2012 the Board recharacterized the Veteran's psychiatric claim as set forth above, on the title page. Thereafter, in January 2012 the Board remanded the claim again for further development. The case was again remanded by the Board for additional development in December 2012. 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 The Veteran was afforded a VA medical examination in April 2013. The examiner rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that according to available service medical records, the Veteran underwent a psychiatric evaluation in June 1966. It was noted that the Veteran experienced severe stress due to marital discord related to his wife's possible mental disorder. He also experienced an acute grief reaction after his wife gave birth to a stillborn child. At the time of follow-up evaluation in October 1966 it was noted that his situational stressors had resolved and he was able to reach a better psychological adjustment. No psychiatric disease was found. The examiner found that the Veteran's current mood disorder was not caused by or the result of his exposure to situational stressors during his military service. The examiner noted that the Veteran was diagnosed and treated for PTSD by a VA physician. The Veteran had reported to the VA physician that he had intrusive memories of being wounded by shrapnel in a mortar attack while he was stationed in Vietnam. Available personnel records indicated that the Veteran was deployed to Vietnam in December 1966. He was stationed at Cam Ranh Bay Air Base where he served as a pavement maintenance specialist. His personnel records indicate that he was separated from service for hardship in February 1967. The examiner noted that upon examination at separation from active service in February 1967 there was no mention of shrapnel wounds or any other injuries sustained in service in Vietnam. The examiner reported that at the time of the February 2012 examination the Veteran did not report intrusive recollections or other symptoms of PTSD related to his service in Vietnam. The examiner found that based upon the Compensation and Pension examination and review of available records there was insufficient evidence for a service connected diagnosis of PTSD. Review of the claims file reveals that the Veteran's DD 214 Armed Force of the United States Report of Transfer or Discharge indicates that the Veteran was wounded as a result of action with enemy forces in December 1966 in Saigon and in February 1967 at Cam Ranh Bay. In addition, the Board notes that the Veteran is in receipt of service-connected benefits for residuals of a shrapnel fragment wound to the right cheek and jaw and status post gunshot wound of the left buttock area with residual scar. As the examiner appears to rely, at least in part, on the lack of noted shrapnel wounds or any other injuries sustained in service in Vietnam upon examination of the Veteran at separation from service in February 1967, the Board finds the April 2013 examination to be inconsistent as the Veteran's personnel records reveal injuries in service and the Veteran is in receipt of service-connected benefits for residuals of a shrapnel wound and a gunshot wound. As such, the Board finds it necessary to remand the claim for the examiner who provided the medical opinion in April 2013 to provide an addendum commenting upon this evidence. Since the claims file is being returned it should be updated to include any additional VA treatment records regarding the Veteran, including records from the Louisville VA Medical Center and the Lexington VA Medical Center. In addition, in a VA treatment note, dated in December 2011, it is indicated that a Fee Consult Response Note was scanned and is viewable via VISTA imaging. A copy of this scanned note should be obtained and associated with the claims file. See 38 C.F.R. § 3.159(c)(2) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all additional VA treatment records from the Louisville VA Medical Center and the Lexington VA Medical Center, and obtain a copy of the Fee Consult Response Note identified in the December 2011 VA treatment note. Any obtained records should be associated with the appellant's claims file. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Thereafter, after all records have been obtained, forward the claims folder to the April 2013 VA examiner to prepare a medical addendum to the examination report. The examiner should review the claims file. The examiner should review all records, to include the 1966 in-service mental health treatment records and the DD 214 Armed Forces of the United States Report of Transfer or Discharge, and opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any current psychiatric disorder is related to active service, to include the 1966 in-service mental health treatment and the Veteran's wounds received as a result of action with enemy forces. The VA examiner should review the current VA treatment records showing that the Veteran's treating psychiatrist has diagnosed the appellant with PTSD and explain whether he agrees with the treating psychiatrist's diagnosis of PTSD and if not, explain why in his opinion the claimant does not have PTSD. If the VA examiner is unavailable, the claims file should be reviewed by another psychologist and if necessary the Veteran should scheduled for another VA examination. A complete rationale for any opinion offered must be provided. 3. Thereafter, readjudicate the issue on appeal. If the benefit is not granted, the appellant must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is 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). _________________________________________________ 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).