Citation Nr: 1329198 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-26 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depressive disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1979. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). As noted on the title page, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that 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). REMAND The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, specifically posttraumatic stress disorder (PTSD) or depressive disorder, due to in-service events. In multiple written statements of record, as well as his May 2008 PTSD Stressor Questionnaire, the Veteran described being attacked by a swarm of bees while in the jungle on a training exercise and being flown to a service hospital for treatment thereafter. There was no specific date given for the incident and the Veteran did not identify the hospital where he received treatment. He has also reported that his platoon lost two men during jungle training in Panama due to dangerous conditions. The Veteran has reported that he felt his life was in danger during jungle training in Panama while on active duty. A longitudinal review of the record showed that the Veteran's service treatment records were negative for any diagnosis of or treatment for an acquired psychiatric disorder or bee swarm attack. Service personnel records showed that the Veteran served in the Army as an infantryman, mortar gunner, and ammo bearer, with one overseas tour in Panama Canal Zone for 14 months during peace time. Post-service VA treatment notes dated in 2008 showed treatment for PTSD, adjustment disorder with anxiety, and chronic insomnia. The Veteran was afforded a VA PTSD examination in February 2011. He reported that his experiences while training in the jungle during active service still bothered him. He complained of difficulty sleeping, nightmares, night sweats, being depressed and irritable, and having audio and visual hallucinations. The Veteran reported that he was currently receiving VA treatment for his claimed disorder and had been prescribed psychiatric medications. The examiner referenced VA treatment records dated from 2000 to 2007 that showed no reported mental health problems. On mental status evaluation, the Veteran was polite, cooperative, oriented, did not appear to be in any acute distress, and exhibited appropriate affect as well as normal mood. It was noted that the Veteran had coherent speech, no evidence of psychosis or thought disorder, appeared capable of maintaining personal hygiene, appeared to have intact memory, and did not exhibit suicidal or homicidal thinking. The examiner listed a diagnosis of depressive disorder not otherwise specified, concluding that the Veteran did not present with a symptom set meeting the criteria for PTSD. The examiner then highlighted that the medical record contained contrasting information concerning the Veteran's mental health symptoms, including multiple screenings in primary care and notations in primary care of no mental health problems. The examiner opined that that the Veteran's depression was not related to his service. Cited rationale for that opinion was the negative findings in VA treatment records, the lack of a symptom set meeting the criteria for a PTSD diagnosis, and the fact that psychological testing indicated a "gross execration (sic) of symptoms and symptom severity". It was further noted that the Veteran did not present an event while in service that met the DSM IV criteria for a traumatic event. A review of the record reveals that further development on this matter is warranted. The Veteran has repeatedly indicated that he received treatment after being attacked by a swarm of bees, one of his claimed stressor events. A review of the record does not show that the RO ever attempted to obtain service hospital records concerning that asserted treatment. In addition, the claims file also currently contains VA treatment records dated from July 2000 to April 2008 from the VA Medical Center (VAMC) in Tuskegee, Alabama. In a May 2008 VA Form 21-4142 (Authorization and Consent to Release Information to VA), the Veteran clearly asserted that he began receiving care with VAMC in Tuskegee, Alabama for his claimed disorder in 1988. During his February 2011 VA examination, the Veteran reported that he last had VA treatment for his claimed disorder in 2010. Therefore, the RO must request all VA medical treatment records pertaining to the claimed acquired psychiatric disorder from January 1988 to July 2000 and from April 2008 to the present. The Board notes that the Veteran has consistently alleged the following in-service stressors: (1) feeling that his life was in danger during jungle training exercises in Panama during active service; (2) the death of two of his platoon members during jungle training exercises in Panama during active service; and (3) being attacked by a swarm of bees during jungle training. In a November 2008 memorandum, the RO determined that the Veteran's cited stressors were inadequate to establish that he experienced an in-service combat stressor or a stressor that was life-threatening to him. The RO also found that information was also insufficient to make a combat stressor verification request through the Joint Services Records Research Center (JSRRC). On remand, the RO should request that the Veteran provide additional information concerning the approximate date of the alleged bee swarm attack, the identity of the service hospital where he received treatment for the attack, and the identity of the two fellow platoon members that were killed during jungle training with him in Panama (to include the circumstances of their deaths). In order for a VA examination to be considered adequate, the articulated reasoning must demonstrate that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The February 2011 VA medical examination is inadequate for purposes of determining service connection. While the VA examiner continually highlighted that the Veteran had not received VA treatment for mental health problems from 2000 to 2007, the examiner clearly failed to discuss or consider findings of PTSD, adjustment disorder with chronic anxiety, and chronic insomnia clearly noted in VA treatment records dated in 2008. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In order to satisfy VA's duty to assist, the Board must remand the appeal in order to afford the Veteran an additional VA medical examination to clarify the nature and etiology of his claimed acquired psychiatric disorder on appeal. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The Veteran reported receiving disability benefits from the Social Security Administration (SSA) during the February 2011 VA examination. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). As such, the RO must attempt to obtain these records. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for an acquired psychiatric disorder. The RO must specifically request that the Veteran provide additional information concerning the approximate date of the alleged bee swarm attack, the identity of the service hospital where he received treatment for the attack, and the identity of the two fellow platoon members that were killed during jungle training with him in Panama, to include the circumstances of their deaths. The Veteran must be asked to provide specific details of the claimed stressful events he experienced during service, such as dates, places, detailed descriptions of events, and any other identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment, or any other identifying detail. The Veteran must be advised that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he must be asked to be as specific as possible because without such details an adequate search for verifying information cannot be conducted. He must also be advised to submit any verifying information regarding the stressors he claims to have experienced in service, such as statements of fellow service members. He is further advised that failure to respond may result in adverse action. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. The RO must also attempt to obtain any hospitalization records from any hospital identified by the Veteran regarding asserted treatment after a bee swarm attack during the Veteran's period of active service. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records pertaining to the Veteran, to include records from the Tuskegee VAMC from January 1988 to July 2000 and from April 2008 to the present. In addition, the RO must contact SSA for the purpose of obtaining all documentation associated with the Veteran's claim for SSA disability benefits. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain this information the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. Once the directives in the above paragraph have been completed, the RO must thoroughly review the claims file and prepare a summary of the claimed stressors for which sufficient information has been provided. The RO must send this summary and the information of record regarding the Veteran's service, including copies of any records relevant to verifying his claimed stressors, to the appropriate agency and request any available information that might corroborate the Veteran's claimed stressors. The RO's request must include the specific information provided by the Veteran concerning his assignment to C Company, 4th Battalion, 10th Infantry Canal Zone while stationed in Panama from June 1978 to August 1979. If the appropriate agency is unable to provide the specific information requested, they must be asked to explain why and/or direct the RO to any additional appropriate sources. All documentation received by the RO must be associated with the claims file. 3. The RO must afford the Veteran a VA psychiatric examination to determine the diagnosis of any found psychiatric disorder(s), including, but not limited to assessing the presence of PTSD and depressive disorder. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner must integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the Veteran's psychiatric status. The RO must specify for the examiner the stressors that it has determined are established by the record. Based on a review of the evidence of record, the examination findings, and with consideration of the Veteran's statements, the examiner must render a diagnosis for any psychiatric disorder found. In so doing, the examiner must specifically comment upon the February and April 2008 diagnoses of PTSD and adjustment disorder with anxiety in VA treatment notes, as well as the February 2011 VA's examiner's diagnosis of depressive disorder, not otherwise specified. Additionally, the examiner must opine as to whether any found psychiatric disorder is causally or etiologically related to the Veteran's military service. If the diagnosis of PTSD is deemed appropriate, the examiner must specify whether there is a link between the current symptomatology and one or more of the in-service stressors established by the record. All rendered opinions must be accompanied by a thorough rationale. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review any medical examination report to ensure that it is in complete compliance with the directives of this Remand. If the examination report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).