Citation Nr: 1327128 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-18 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Atlanta Regional Office in Decatur, Georgia THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD), depression and alcohol dependence. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision by the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) in Decatur, Georgia. The Veteran failed to report for a Board hearing scheduled at his request, after being apprised of the date and time of the hearing. He has not provided information alleging good cause for failure to report nor has he requested a rescheduled hearing. His request is considered withdrawn. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that an appellant's claim for service connection for posttraumatic stress disorder (PTSD) should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may 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." Id. at 5. In accordance with this decision, the Board has characterized the issue on appeal as shown on the title page. 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 Board is of the opinion that additional development is required before the Veteran's claim is decided. Initially, the Board observes that the Veteran has a conceded combat stressor inasmuch as his DD form 214 reflects that he has a combat infantryman badge, had service in Vietnam and was an infantryman. He claims he has psychiatric disability, to include PTSD, due to his combat stressors. However, the record does not establish a sufficient diagnosis of PTSD. Although a VA psychology evaluation dated in July 2005 reflects a diagnosis of PTSD and depression, the record is replete with reference to treatment for and diagnoses of alcohol and substance abuse. A September 2005 VA QTC examination ordered in conjunction with this claim reflects no diagnosis of PTSD but instead contains a diagnosis of alcohol dependence. Nonetheless, following the issuance of the Statement of the Case (SOC) dated in March 2009, the Veteran's accredited representative submitted a statement in support of the claim, which is associated with the claims file, arguing that all of the current psychiatric diagnoses are due to service. Specifically, he argued that the Veteran's abuse of alcohol is actually a self medication habit secondary to PTSD and depression caused by the combat stressors. There has been considerable evidence in treatment records dated subsequent to the 2005 VA examination relevant to this theory. Additionally, the Board finds it significant that it is documented that the Veteran did undergo psychiatric treatment in service for adjustment difficulties upon his return from Vietnam, and this was not fully addressed in the examination. Furthermore, it is the Veteran's contention that, although he did work for many years following service, his psychiatric problems and memories of combat have recently become overwhelming and he is in need of psychiatric help. Considering all of this information, the Board finds the 2005 QTC examination does not adequately address the contentions in this case relevant to the critical medical issue. The Board also notes that the Veteran has not been afforded a VA examination related to these claimed psychiatric disabilities that considers the representative's contentions. He has reported a history of psychiatric problems, and in some treatment records, he has associated these symptoms with his experiences during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence shows that the Veteran has been diagnosed with additional psychiatric disabilities as noted above, and additional records pertinent to this claim might be available. Finally, the Veteran should be afforded an examination in order to determine the nature and etiology of any acquired psychiatric disorders present during the period of this claim. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding medical records pertaining to post-service treatment or examination of the Veteran for any psychiatric disability, to specifically include VA treatment records. 2. Then, schedule the Veteran for a VA examination by a psychologist or psychiatrist to determine the nature and etiology of all acquired psychiatric disorders present during the pendency of this claim. The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed. With respect to each acquired psychiatric disorder present during the period of the claim, the examiner should state whether it is at least as likely as not (a 50 percent or better probability) that the disorder was present during the Veteran's active service and, if so, whether the disorder clearly and unmistakably existed prior to the Veteran's entrance onto active duty. With respect to any such disorder the examiner believes clearly and unmistakably existed prior to the Veteran's active service, the examiner should state an opinion as to whether the disorder clearly and unmistakably underwent no permanent increase in severity as a result of active service. With respect to any such disorder which the examiner believes was not present during the Veteran's active service, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the disorder is etiologically related to the Veteran's active service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The rationale for each opinion expressed must also be provided. 3. Then, readjudicate the Veteran's claim on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).