Citation Nr: 1328273 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-25 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include major depressive disorder. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In August 2012, the Veteran testified during a video conference hearing before the undersigned Acting Veterans Law Judge. The transcript of the hearing is associated with the claims file. The Veteran also testified at a local hearing before a Decision Review Officer in March 2010. The transcript of the hearing is associated with the claims file. In May 2013, the Veteran submitted additional evidence accompanied by a written waiver of initial RO consideration of the evidence. Thus, this evidence is accepted for inclusion in the record on appeal. 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 Veteran has indicated that he is in receipt of disability benefits from the Social Security Administration (SSA). It is not clear as to whether the disability benefits are based on his psychiatric disability or based on multiple disabilities. There are no SSA records associated with the claims file, and there is no indication that VA has attempted to obtain any such records. While SSA records are not controlling for VA determinations, when VA is put on notice of the existence of SSA records, and they may be pertinent to a VA claim, VA must seek to obtain those records before proceeding with the appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Therefore, the RO/AMC must attempt to obtain the Veteran's complete SSA records. The Veteran has contended that his PTSD is related to his active service. He reported that he was physically assaulted by his fellow soldiers and drill instructor. If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5) (2012). VA will not deny such claims without: (1) first advising veterans that evidence from sources other than a veteran's service medical records, including evidence of behavior changes, may constitute supporting evidence of the stressor; and (2) allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Id. Although the Veteran was sent notice letters, the letters do not comply with the above elements of a personal assault case. On remand, the Veteran should be provided notice of the sources of evidence other than service medical records that may support the Veteran's claimed stressors. During his video hearing, the Veteran stated that he was seen at Lakeside VA clinic for treatment in the 1980s. The Lakeside VA outpatient clinic is part of the parent facility-- Jesse Brown VA Medical Center (VAMC). The claims folder contains records from the Jesse Brown VAMC; however, it is unclear as to whether all records were requested. Therefore, on remand, all VA treatment records prior to October 2007 should be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran also reported that he received treatment at the Chicago Heights Vet Center. However, he stated during the video hearing that the records were not available. Therefore, the records will not be requested on remand. With respect to the Veteran's alleged stressors, the Veteran stated that he witnessed a fellow soldier die when he choked on sand during basic training. The Veteran explained that he did not remember the soldier's name, but he was in the same unit. See DRO hearing transcript. In a statement in support of his claim, the Veteran identified the incident as having occurred between February and April of 1969. The service personnel records show that the Veteran was assigned to 1stRTrngBn, RTR MCRDep, in San Diego, California. The Board finds that there is sufficient information to attempt to verify the Veteran's alleged stressor and the RO/AMC must make an attempt to verify the stressor. Finally, the Veteran was provided a VA examination in December 2007 with respect to his claim for service connection for a psychiatric disability. The examiner provided an addendum to the examination report and offered a negative nexus opinion. However, the examiner did not provide any rationale with respect to the expressed opinion. Further, the examiner was not asked whether the Veteran had a diagnosis of PTSD. Therefore, the Board finds that the Veteran should be afforded a new VA examination. See Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate sources and attempt to verify the Veteran's claimed stressor of witnessing a fellow soldier die after choking on sand. The stressor allegedly occurred between February and April of 1969 when the Veteran was stationed with the 1stRTrngBn, RTR MCRDep, in San Diego, California. All attempts to verify the stressor should be documented and associated with the claims file. 2. Send a letter to the Veteran and advise him of potential secondary sources tending to substantiate his claim of personal assault. Examples of such evidence include, but are not limited to: Records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually-transmitted diseases; and roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: A request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 3. Contact the SSA and request a copy of all materials, to include medical records, related to the Veteran's claim for SSA disability benefits. Once obtained, associate these records with the claims file. If SSA notifies VA that these records are unavailable, place a copy of this notification in the Veteran's claims file and notify the Veteran accordingly. 4. Obtain copies of all VA treatment records from the Jesse Brown VA Medical Center and Lakeside outpatient clinic, prior to October 2007. If requests for treatment records are not successful, the RO/AMC should inform the Veteran accordingly. 5. Schedule the Veteran for a VA examination. The claims file should be made available for review and the examiner should note that the claims file was reviewed. The RO/AMC should include a summary of all verified stressors to the examiner. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. The examiner should address the relationship between any diagnosed PTSD and any verified in-service stressor. The examiner should address whether it is at least as likely as not (50 percent likelihood or higher) that the Veteran has PTSD as a result of a verified stressor. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any diagnosed PTSD is a result of a personal assault. For the purposes of this opinion, the examiner should presume that the Veteran was involved in fights as documented by pain in his testicles in the service treatment records and the notation that the Veteran was involved in fights in the service personnel records. In addition to an opinion regarding PTSD, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that the Veteran has any other psychiatric disability that is related or caused by active service. All opinions expressed must be supported by complete rationale. 6. When the development requested has been completed, the issues on appeal should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the issues should be readjudicated by the RO/AMC in a supplemental statement of the case (SSOC). The Veteran and his representative should be furnished a copy of the SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ L.M. BARNARD 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).