Citation Nr: 1326263 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-12 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to April 1991. This matter comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for PTSD. A notice of disagreement was filed in March 2010, a statement of the case was issued in April 2011, and a substantive appeal was received in May 2011. The United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). Thus, the Board will also consider entitlement to service connection for an acquired psychiatric disorder, to include anxiety and PTSD, hence the recharacterization of the issue hereinabove. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Per recent regulation changes, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. See 38 C.F.R. § 3.304(f)(3) (2012); 75 Fed. Reg. 39843-39852 (July 13, 2010). The Veteran had active service during the beginning of the Persian Gulf War, stationed aboard the USS Cape Cod from August 1987 to April 1991. He asserts that the USS Cape Cod was deployed to the Persian Gulf and that it visited the Ports of Bahrain, Jubail and Dammam. The Veteran asserts that the USS Cape Cod was a repair ship that with as not involved in combat but the ship was close enough to see and hear attacks, explosions, mortar attacks, and gun fights. See VA Forms 21-0781 dated February 2010 and March 2010. Based on review of the Veteran's service personnel records and DD Form 214, it is clear that he served aboard the USS Cape Cod and had 3 years, 4 months, and 8 days of sea service but it is not clear when the USS Cape Cod was deployed to the Persian Gulf. While the record does not reflect that the Veteran engaged in combat (38 U.S.C.A. § 1154(b)) with the enemy, he appears to be claiming a stressor due to fear of hostile military or terrorist activity. However, despite his general assertions of fear of hostile military or terrorist activity, the fact remains that the Veteran's active service encompassed 8 months of the Persian Gulf War (see 38 C.F.R. § 3.2(i)), and it is not clear when the USS Cape Cod was deployed in the Persian Gulf. Initially, the RO/AMC should contact the Veteran and request that he provide specific dates (or estimated periods within a 60-day window) pertaining to when the USS Cape Cod was deployed in the Persian Gulf, and he should provide specific dates (or estimated periods within a 60-day window) as to when the purported attacks, explosions, mortar attacks, and gun fights occurred while he was stationed aboard the USS Cape Cod. Based on any response from the Veteran, an attempt should be made to corroborate any of the Veteran's assertions with the United States Army and Joint Service Records Research Center (JSRRC). An attempt should also be made to obtain the deck logs or ship records from the USS Cape Cod from the Department of the Navy, or any other appropriate repository, for the period August 2, 1990, which constitutes the beginning date of the Persian Gulf War (see 38 C.F.R. § 3.2(i)), to April 11, 1991, which appears to be the date the Veteran completed his service aboard the USS Cape Cod, in an attempt to verify the periods in which the USS Cape Cod was deployed to the Persian Gulf. The Veteran should then be scheduled for a VA examination to assess whether he has PTSD due to service, to include due to fear of hostile military or terrorist activity or due to any corroborated stressor. Finally, as detailed in the Introduction, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claim of service connection for PTSD was not limited to an adjudication of PTSD alone in light of other diagnoses of mental illness in the record. The Court noted that a layperson is not competent to diagnose a psychiatric disorder; therefore, any and all mental disorders eventually diagnosed during the course of a claim should be considered, even though the Veteran did not file a written claim for that disorder. The facts of the instant case are similar to those in Clemons. In this matter, the RO has denied entitlement to service connection for PTSD on the basis of lack of diagnosis based on a corroborated stressor. The medical evidence, however, reflects a diagnosis of anxiety. The RO has not considered this diagnosis in adjudicating the claim. Likewise, the VA examination report should also address whether any acquired psychiatric disorder, to include anxiety, is due to service. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he provide specific dates (or estimated periods within a 60-day window) pertaining to when the USS Cape Cod was deployed in the Persian Gulf, and request that he provide specific dates (or estimated periods within a 60-day window) as to when the purported attacks, explosions, mortar attacks, and gun fights occurred while he was stationed aboard the USS Cape Cod. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Request from the Department of the Navy, or any other appropriate repository, information as to when the USS Cape Cod was deployed in the Persian Gulf, and request deck logs or ship records pertaining to the USS Cape Cod for the period August 2, 1990, to April 11, 1991, or the requisite period that the USS Cape Cod was deployed in the Persian Gulf. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 4. If the Veteran provides appropriate and detailed information, contact the JSRRC and attempt to corroborate any of the asserted stressors. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 5. Thereafter, schedule the Veteran for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. The examiner should be advised of the dates or periods that the USS Cape Cod was deployed in the Persian Gulf and/or whether any of the Veteran's stressors have been verified or corroborated. The examiner should provide an opinion as to the following: a) Whether the Veteran currently suffers from PTSD related to his fear of hostile military or terrorist activity while on active duty stationed aboard the USS Cape Cod in the Persian Gulf, and whether it is adequate to support a diagnosis of PTSD. 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, OR whether the Veteran has PTSD due to a corroborated stressor; b) For any other psychiatric diagnosis rendered other than PTSD, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed psychiatric disorder, to include anxiety, is a result of service or any incident therein, to include any corroborated stressor. If opinions cannot be rendered without resorting to speculation as to the etiology of his PTSD or any other psychiatric disability, the examiner should discuss in detail why an opinion cannot be offered. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 6. Upon completion of the above, the RO should adjudicate the Veteran's claim of service connection for an acquired psychiatric disability, to include anxiety and PTSD, to include pursuant to 38 C.F.R. § 3.304(f)(3). If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ ERIC S. LEBOFF 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).