Citation Nr: 1327830 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 12-21 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. 2. Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2013, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Virtual VA eFolder. The Veteran claimed service connection for both PTSD and generalized anxiety. Review of the claims folder shows additional Axis I diagnoses, to include depressive disorder. Accordingly, the Board has rephrased the issue as stated above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Virtual VA and VBMS folders have been reviewed. In July 2012, the Veteran submitted a claim of entitlement to a total disability rating based on individual unemployability. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. With regards to both claims on appeal, the Veteran testified that he receives VA medical treatment. VA medical records were last uploaded to the Virtual VA eFolder in December 2011. Additional relevant records should be obtained on remand. See 38 C.F.R. § 3.159(c)(2) (2012). Service connection for a psychiatric disorder Remand is required regarding this claim to obtain adequate stressor verification and an adequate examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran contends that he has a psychiatric disorder related to active military service. Specifically, he asserts that he has PTSD related to two stressors which occurred while he was stationed at Schofield Barracks in Hawaii. First, that a friend committed suicide by shooting himself in the head. He could not remember the friend's name, but thought that it occurred in about February 1990. Second, that a friend of his had a heart attack during physical training and died. He was able to provide this friend's last name and thought the incident occurred in August or September 1992. At the hearing, the Veteran provided testimony regarding the reported suicide. He argued that he should not be punished because he could not remember the soldier's name. He testified that the incident occurred between 1990 and 1991. In January 2012, the RO requested stressor verification. With regard to the first stressor, the U.S. Army casualty information was searched. This showed that 2 individuals (whose names were provided) died from self-inflicting wounds. The first individual died on September [redacted], 1989, which was prior to the Veteran's arrival at Schofield Barracks. However, the other individual, C.K., died in September 1990, while the Veteran was stationed there. The casualty information did not contain the unit of assignments of the individuals and further development was suggested, to include requesting the official military personnel file for these individuals or requesting the criminal investigation reports from the U.S. Army Crime Records Center. With regard to stressor number two, the referenced soldier was not documented as a casualty in the year 1992. It was noted, however, that there might be a criminal investigation report filed on this incident. The Veteran underwent a VA PTSD examination in July 2012. At that time, the examiner diagnosed depressive disorder, not otherwise specified, and indicated that the Veteran did not meet the criteria for a PTSD diagnosis. Although the examiner noted the Veteran's report of a friend committing suicide, he did not otherwise document any stressors or indicate whether such stressors were adequate to support a PTSD diagnosis. Additionally, it does not appear that the claims folder was available for review. The examiner specifically noted "no claims file." The Board observes that VA outpatient records include a diagnosis of PTSD and under these circumstances, a review of the claims folder is considered necessary. Evaluation for bilateral hearing loss Regarding the claim for an increased evaluation, the appeal must be remanded for an examination. VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened or the available evidence is too old or does not provide the appropriate information for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); 38 C.F.R. § 3.326 (a) (2012). The most recent audiology examination was in June 2011. In his August 2012 Form 9 and at the February 2013 hearing, the Veteran reported that his hearing loss had worsened. Accordingly, a new examination must be conducted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain medical records from the VA Medical Centers in Columbia and Charleston, and the VA outpatient clinic in Sumter, for the period from December 2011 to the present. Any records received should be associated with the claims folder or virtual folders. The procedures at 38 C.F.R. § 3.159(c)(2), with respect to Federal records, should be followed. 2. Make additional attempts to verify the Veteran's reported stressors. See guidance as set forth in the DPRIS responses printed January 24, 2012 (e.g., requesting documentation pertaining to these incidents from the U.S. Army Crime Records Center). All efforts to document the claimed stressors occurring during the time period the Veteran was stationed at Schofield Barracks should be documented in the claims folder. If unable to sufficiently corroborate the claimed stressors, a formal finding should be completed. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disorders. The claims folder should be made available for review by the examiner. Additionally, all relevant medical records should be made available to the examiner for review, either in the virtual claims file, or if unavailable, then via paper copies or the paper claims file. The examiner should be advised as to whether any of the Veteran's reported stressors have been verified. The examiner is requested to address the following: (a) Identify all current psychiatric diagnoses. If there are no diagnoses of PTSD or depressive disorder, address the presence of those diagnoses in the record. (b) If the Veteran is diagnosed with PTSD, the examiner is requested to state whether it is at least as likely as not related to any verified in-service stressor. (c) If the Veteran is diagnosed with an Axis I disorder other than PTSD, the examiner is requested to state, for each diagnosis, whether it is at least as likely as not related to active military service or events therein. A complete rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 4. Schedule the Veteran for a VA examination to ascertain the severity and manifestations of his bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The claims folder should be made available for review by the examiner. Additionally, all relevant medical records should be made available to the examiner for review, either in the Virtual claims file, or if unavailable, then via paper copies. A complete rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner should comment on the severity of the Veteran's service-connected hearing loss and discuss the effect of the disability on his occupational functioning and daily activities. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). _________________________________________________ K. MILLIKAN Acting 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).