Citation Nr: 1328596 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-15 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a psychiatric disability to include post-traumatic stress disorder (PTSD) and a panic disorder/claustrophobia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from October 1967 to May 1971. The Veteran served in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board notes that service connection for PTSD and for panic attacks (claimed as claustrophobia) were denied in a February 2005 rating decision. Thereafter, evidence was received, so the RO reconsidered the claim in an April 2005 decision, but denied the claim. Thereafter, and still within the one year period of the RO's February 2005 rating decision, additional pertinent evidence was received, but the RO did not issue a rating decision addressing this evidence. In January 2008, the Veteran indicated that he was seeking service connection for a psychiatric disability which was then denied in a February 2008 decision on the basis that new and material evidence had not been received. The appeal ensued from that point. However, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim. Id. at 1368. The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. Since additional evidence addressing the matter of service connection for a psychiatric disability was received within one year of the RO's 2005 decision and the RO did not evaluate that evidence in conjunction with that claim until 2008, the Board finds that the appeal is from the February 2005 rating decision which did not become final (nor did the subsequent April 2005 decision become final). Thus, the issue on appeal is not whether new and material evidence has been submitted, but rather service connection on the merits. In April 2010, the RO denied entitlement to a TDIU and the Veteran also perfected an appeal as to that issue. In March 2013, the Veteran testified at a Board hearing which could not be properly transcribed for the record. Thus, he was extended the opportunity of another Board hearing. In May 2013, the Veteran testified before the undersigned at a Board hearing via video conference from the RO. The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of service connection for a psychiatric disability has been recharacterized on the front page of this decision as indicated. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. With regard to his claim for a psychiatric disability, the Veteran contends that he developed PTSD and a panic disorder/claustrophobia due to stressful events during service. He asserts that one of his inservice duties was to view graphic photographs of combat situation. He maintains that he also saw a young Vietnamese man killed after being dragged out a café where he was dining, located outside of his base, Ton Son Nhut Air Base. The Veteran also contends that his unit came under enemy mortar fire on many occasions. The Veteran has submitted a letter from another service member which indicates that his first and last stressors occurred. There are various medical reports contained in the claims file. Some of these reports attribute the Veteran's psychiatric disability to service, and some do not. However, the positive opinions rendered the diagnoses based on the claimed stressors. In February 2009, the RO completed a Formal Finding of a Lack of Information Required to Corroborate a Stressor. The report indicated that the Veteran's inservice duties were in the administrative field and a review of two performance reports was addressed. In sum, the RO concluded that the Veteran's claimed stressors were inconsistent with his claimed duties. This reported was dated prior to the submitted buddy statement. There has been no attempt to verify the Veteran's stressors; however, as noted, there is lay evidence supporting two of the stressors, one of which is that the Veteran's unit came under enemy fire. The Veteran should be provided another opportunity to provide specific dates when the alleged mortar fire and enemy fire occurred. Even if the Veteran fails to do so, an attempt to verify the Veteran's claimed stressors through the appropriate channels, to include the U. S. Army and Joint Services Records Research Center (JSRRC), should be made. JSRRC should specifically be requested to verify whether the unit to which the Veteran was attached in Vietnam, the 12th Recon Intel Tech Squadron, was subject to enemy and mortar attacks. If this alleged stressor cannot be verified, that should be stated. With regard to a TDIU, the Veteran testified that his service-connected diabetes mellitus (DM) results in his inability to work. He stated that he has complications involving his feet, but his electromyography studies (EMG) were in the process of being scheduled. Since the Veteran indicated a worsening of his DM, the Board finds that the updated VA records should be obtained and he should also be examined. The Board also observes that there is medical evidence indicated that psychiatric disability results in unemployability. Thus, the service connection issue should be resolved prior to the TDIU matter. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided another opportunity to provide specific dates when the alleged mortar fire and enemy fire occurred. An attempt should be made to verify the Veteran's claimed stressors through the appropriate channels, to include JSRRC. JSRRC should specifically be requested to verify whether the unit, the 12th Recon Intel Tech Squadron, to which the Veteran was attached in Vietnam was subject to mortar and enemy attacks. If this alleged stressor cannot be verified, that should be stated. 2. The Veteran's updated treatment records from the Biloxi VA Medical Center should be obtained and made part of the record. 3. After PTSD stressor development is completed, the RO should schedule the Veteran for a VA examination to assess the nature and etiology of any current psychiatric disability. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the file and examining the Veteran, the examiner should render an opinion as to the following, supported by a thorough explanation: The examiner should identify all currently diagnosed psychiatric disorders. For any PTSD diagnosed on examination, the examiner should determine whether it is at least as likely as not i.e., a probability of 50 percent or greater, that the Veteran's PTSD is the result of a corroborated in-service stressor to include exposure to enemy fire. If the Veteran is found to have a psychiatric disorder other than PTSD, the examiner is requested to provide an opinion as to whether it is at least as likely as not i.e., a probability of 50 percent or greater, that any such currently diagnosed psychiatric disorder is causally related to his military service. Any opinion provided should include discussion of specific evidence of record. The basis for the conclusions reached should be stated in full, and any opinion contrary to those already of record should be reconciled, to the extent possible. 4. The RO should then readjudicate the claim for service connection for a psychiatric disability to include PTSD in light of the evidence of record. If this issue remains denied, the Veteran should be provided with a Supplemental Statement of the Case and afforded a reasonable time within which to respond. 5. Once the matter of service connection for a psychiatric disability is resolved, the RO should schedule the Veteran for a VA compensation examination to assess the severity of his service-connected disabilities. The examiner should provide an opinion as to whether the Veteran's service-connected disability(ies) alone prevent him from engaging in a substantially gainful occupation. The opinion should address whether his service-connected disability(ies) is so disabling as to render him unemployable. The Veteran's age and the effects of non-service-connected disabilities cannot be factors for consideration in making the determination. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. The RO should then readjudicate the claim for TDIU in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ K. PARAKKAL 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).