Citation Nr: 1327375 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-13 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. 2. Entitlement to service connection for a skin disorder of the feet. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1969 and December 1969 to October 1970. He served in the Republic of Vietnam from July 1968 to September 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which declined to reopen the Veteran's previously denied claim for service connection for a nervous condition, to include posttraumatic stress disorder (PTSD), a personality disorder, and a sexual disorder, and denied service connection for a disorder affecting the feet. The Veteran made a request for a VA Central Office hearing on his April 2009 VA Form 9. However, in a subsequent communication received in November 2011, he withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e) (2012). The Board notes that the Veteran originally filed his claim for PTSD and a personality disorder. Although not expressly claimed by the Veteran, the Board is expanding his original claim for service connection to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). Accordingly, the issue has been recharacterized above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND Initially, with regard to the Veteran's claim for service connection for an acquired psychiatric disorder, the Board notes that the claim has been certified to the Board from the RO as a petition to reopen a previously denied claim for service connection. However, under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA must reconsider the claim. 38 C.F.R. § 3.156(c) (2012). This regulation comprehends official service department records which presumably have been misplaced and have now been located and forwarded to VA. Id. In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claim must be reconsidered. See id. In this case, the Veteran's original claim for service connection for a nervous condition was denied in an April 1983 RO decision. He did not appeal the April 1983 rating decision and it became final. 38 U.S.C.A. § 7105 (West 2002). His claim was reopened and denied again in a January 1985. He appealed this rating decision and the denial was affirmed by the Board in a March 1986 decision. May 1990 and February 1999 rating decisions declined to reopen the Veteran's claim for service connection for a psychiatric disorder. The Veteran did not appeal these denials of reopening and they also became final. 38 U.S.C.A. § 7105 (West 2002). The unappealed February 1999 rating decision declining to reopen the Veteran's claim for service connection for a psychiatric disorder is the last final denial of this claim. Evidence received since the February 1999 denial includes the Veteran's service personnel records which had not been previously requested or obtained by VA. The personnel records include several statements and documents regarding the Veteran's discharge for unsuitability and unusual behavior leading up to his discharge. Although VA was aware of the discharge for unsuitability and some of the concerns regarding his behavior from his previously obtained service treatment records at the time of the prior denials, these newly obtained personnel records include further detail. These official service department records were not previously considered, and are relevant because they discuss the Veteran's in-service behavior, including possible psychiatric symptomatology. Given the acquisition of the additional service records, the claim for service connection for an acquired psychiatric disorder must be reconsidered de novo, without regard to the previous final denials. 38 C.F.R. § 3.156(c) (2012). Accordingly, the issue has been recharacterized above as a claim for service connection. Further, after a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claims of entitlement to service connection for an acquired psychiatric disorder. With regard to the psychiatric disorder claim, the Veteran claims that he has an acquired psychiatric disorder that began in or is related to his service. He has claimed that he has PTSD that is the result of a personal assault in service and/or a fear of hostile military action while serving in the Republic of Vietnam. Although the Veteran has claimed that he served in combat in Vietnam (see BVA hearing transcript, August 1985), there is no evidence of such. However, during the pendency of his appeal, VA regulations relating to stressor verification and service connection for PTSD changed. Specifically, 38 C.F.R. § 3.304(f)(3) went into effect on July 13, 2010. Under 38 C.F.R. § 3.304(f)(3), if an in-service stressor involves fear of hostile military or terrorist activity, service connection for PTSD may be established if: a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD; the claimed stressor is consistent with the places and circumstances of the Veteran's service; and the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (2012). The Veteran's contentions of fearing for his life are consistent with his service as a light vehicle driver in the Republic of Vietnam. See Notice of Disagreement, July 2008. Additionally, VA treatment records show psychiatric treatment. However, at this time, there is no confirmed diagnosis of PTSD or evidence to clearly link PTSD to the claimed stressors and no VA psychiatrist, psychologist, or contract equivalent has confirmed that the claimed stressors are adequate to support a PTSD diagnosis. Accordingly, under the new regulation, 38 C.F.R. § 3.304(f)(3), the Board finds that a VA examination is necessary to decide the claim. The Board notes that the Veteran has alternatively claimed that his psychiatric disorder began in service, as evidenced by his in-service complaints of anxiety and unusual behavior, and/or that it is the result of an in-service personal assault(s), including being raped by fourteen fellow soldiers and being hit in the head. See VA treatment record, April 2000; Veteran statement, August 2008. On remand, the AMC should also provide the Veteran notice of the requirements for service connection for PTSD based on personal assault and the forms of alternative evidence that he may submit to support such a claim. 38 C.F.R. § 3.304(f)(5) (2012). With regard to the skin disorder of the feet claim, the Veteran claims that he has a skin disorder of the feet that began in service. His service treatment records are negative for any skin-related foot complaints, but a February 1970 service treatment record shows a complaint of foot pain. Additionally, VA treatment records show that he has been diagnosed with various skin disorders of the feet, including dry and cracking skin on the feet, chronic skin discoloration of the bilateral shins, signs of hyperkeratosis on the left foot and toes, a foot ulcer, and a diabetic sore on the right inner ankle. See VA treatment records, February 2006, January 2009, April 2009, August 2011, September 2011. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In light of the evidence showing diagnoses of skin disorders of the feet, the in-service complaint of foot pain, and the Veteran's contention that his foot disability is the result of his in-service complaints, the Board finds that an examination and medical nexus opinion are necessary in order to properly resolve the claim of entitlement to service connection for a skin disorder of the feet. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); see also McLendon, supra. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and a skin disorder of the feet must be remanded for VA examinations and opinions. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with information regarding what alternative sources of evidence he may submit to support his claim for service connection for PTSD based on personal assault, as enumerated in 38 C.F.R. § 3.304(f)(5) (2012). 2. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner (a VA psychiatrist or psychologist or contract equivalent) to determine the nature and etiology of his acquired psychiatric disorder(s). The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. If the Veteran remains incarcerated, the AMC must determine whether he has transport approval. If so, he may be scheduled for his examination at an appropriate facility. If the Veteran cannot be transported, the AMC must take measure to attempt to facilitate examination of the Veteran at the correctional institution or, in the alternative, to have the Veteran examined by a physician of the correctional facility. The procedures laid out in the M21-1MR, Part III.iv.3.A.11.d should be followed. All communications regarding the AMC's attempt to schedule examinations for the Veteran should be documented in the claims file. The examiner should identify and diagnose all acquired psychiatric disorders, to include those that may have resolved during the appeals process. For each diagnosed psychiatric disorder, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active service. Specifically, the examiner should state whether or not the Veteran's claimed stressors are related to his fear of hostile military or terrorist activity. The examiner should then determine whether this is adequate to support a diagnosis of PTSD. The examiner should also discuss the in-service psychiatric treatment, complaints of anxiety and unusual behavior, and discharge for unsuitability. If the examiner diagnoses the Veteran with a personality disorder, s/he must state whether the Veteran also has an acquired psychiatric disorder that is superimposed upon the personality disorder. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his claimed skin disorder of the feet. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. If the Veteran remains incarcerated, the AMC must determine whether he has transport approval. If so, he may be scheduled for his examination at an appropriate facility. If the Veteran cannot be transported, the AMC must take measure to attempt to facilitate examination of the Veteran at the correctional institution or, in the alternative, to have the Veteran examined by a physician of the correctional facility. The procedures laid out in the M21-1MR, Part III.iv.3.A.11.d should be followed. All communications regarding the AMC's attempt to schedule examinations for the Veteran should be documented in the claims file. The examiner should identify and diagnose all skin disorders of the feet, to include those that may have resolved during the appeals process. For each diagnosed skin disorder of the feet the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active service. The examiner should specifically address the February 1970 service treatment record showing complaints of foot pain. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above actions and any other notification or development deemed necessary, the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD (based on personal assault and under 38 C.F.R. § 3.304(f)(3)), and a skin disorder of the feet should be readjudicated. If either of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).