Citation Nr: 1326608 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-21 028A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, although the RO has adjudicated the Veteran's claim as entitlement to service connection for PTSD, the issue on appeal encompasses a claim for service connection for an underlying psychiatric disability, regardless of how it is diagnosed. In February and April 2012, the Veteran withdrew his request for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (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 on his part. REMAND Under the Veterans Claims Assistance Act of 2000, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran contends that his currently diagnosed PTSD is related to an acoustic trauma injury that occurred when he was subjected to an explosion during a night infiltration training course during basic training. He has reported that the incident occurred in approximately October 1969 at Fort Dix, New Jersey. He has also reported that he has symptoms of PTSD, including feelings of distrust and worthlessness, and mistrust of persons in authority, as a result of being subjected to verbal threats (being sent to Vietnam), ridicule, embarrassment and contempt from superior officers, after complaining about being sent to what he believed to be an inferior radar repair training school at Fort Bliss, Texas instead of the school he was originally assigned to. He also claims that a lieutenant verbally assaulted him in October 1971, by insinuating his wife, who was ill at the time, and other Army wives were whores. See November 2009 stressor statements. Service treatment records show that the Veteran complained of problems with "nerves" related to a hassle over his job in April 1971. He was prescribed Valium. Besides this one entry, the service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a psychiatric disability, verbal assault or harassment, and no psychiatric disability was diagnosed at the time of his discharge in December 1971. In February 2010, a formal finding of lack of information required to corroborate stressor(s) associated with a claim for service connection for PTSD was issued, indicating that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. However, the Board notes that the memorandum is incomplete, in that it did not indicate that the Veteran had specifically reported that the explosion during basic training occurred in October 1969 at Fort Dix, New Jersey. The Board finds that some of the veteran's alleged stressors are not verifiable or do not appear to have contributed to his development of PTSD. However, the reported explosion during basic training in October 1969 at Fort Dix, New Jersey is potentially verifiable, but the RO has not undertaken adequate development to do so. Accordingly, the Board finds that a VA examination and opinion are needed to determine whether the Veteran's claimed stressor of being subjected to an explosion during basic training at Fort Dix, New Jersey, in October 1969 is adequate to support a diagnosis of PTSD, and whether his symptoms are related to that claimed stressor. The Board also notes that in addition to his diagnosis of PTSD, the Veteran has also been diagnosed during VA outpatient treatment with major depressive disorder (MDD), related to his reports of being verbally threatened by military superiors. However, there is no medical opinion of record addressing the etiology of the Veteran's currently diagnosed MDD. The medical evidence of record contains competent evidence of a current psychiatric disability. The Veteran's reports of in-service psychiatric symptoms and continuity of symptomatology provide evidence that a current psychiatric disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, contemporaneous evidence of an ongoing psychiatric disability in the years following service is not of record. The Board notes further that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a Veteran's claim for PTSD was not limited only to his lay diagnosis, but rather included any mental disability that could "reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. at 5. The record does not reflect that the RO has adjudicated the Veteran's claim as one for service connection for any acquired psychiatric disability, in light of the current diagnosis of MDD made during VA outpatient treatment. See Clemons v. Shinseki, 23 Vet. App. Therefore, the Board believes that the Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of all currently present acquired psychiatric disorders. The Board also notes that the claims file, including the Virtual VA e-folder, does not contain any treatment records dated after February 2010. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claim. The Veteran is hereby notified that it is the Veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD and/or any other psychiatric disability, including MDD. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate the records of such treatment with the claims file. All development efforts should be in writing and associated with the claims folder. 2. The RO should also obtain any outstanding VA medical records dated from February 2010 to the present. 3. Then, the RO or the AMC should contact the U.S. Army and Joint Services Records Research Center (JSRRC), formerly known as the U.S. Armed Forces Service Center for Unit Records Research (CURR) and request it to verify the Veteran's allegation that he was subjected to an explosion during basic training in October 1969 at Fort Dix, New Jersey. 4. Then, arrange for the Veteran to be given an examination to determine the etiology of all current psychiatric disorders. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. If PTSD is diagnosed (under DSM-IV criteria), the examiner should identify the elements supporting the diagnosis, to include the stressor(s) and whether such stressor stressors are adequate to support a diagnosis of PTSD. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. With respect to any other acquired psychiatric disorders found to be present, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more ) that the disorder originated while the Veteran was serving on active duty or is otherwise etiologically related to service. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinion. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, the RO or the AMC should re-adjudicate Veteran's claim as one for entitlement to service connection for any acquired psychiatric disability, to include PTSD and MDD. If the benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and his representative should be furnished a SSOC and should be given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. 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). _________________________________________________ BARBARA B. COPELAND 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).