Citation Nr: 1329200 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-06 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1988 to May 1992 and from May 1996 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The record shows that the Veteran initially requested a videoconference Board hearing on the February 2010 VA Form 9, and a videoconference Board hearing was subsequently scheduled for August 2012. However, in a letter sent by facsimile the day before the scheduled hearing, the Veteran stated that he was unable to attend the Board hearing, was in the process of acquiring counsel to represent him in the case, and would have the counsel contact the RO to reschedule the hearing. The Veteran has not since acquired new representation, and neither the Veteran nor the current representative has requested that the Board hearing be rescheduled. For these reasons, the Board finds that the Veteran's hearing request has been withdrawn. 38 C.F.R. § 20.704(d) (2012). The U.S. Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability which 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 (2009). In this case, the Veteran's VA treatment records include current Axis I psychiatric diagnoses of depression, as well as Axis I psychiatric diagnoses of PTSD and anxiety not otherwise specified (NOS). Also, in statements submitted during the course of the appeal, the Veteran and/or the representative has stated that the Veteran has insomnia, depression, and anxiety due to PTSD. See, e.g., October 2010 VA Form 21- 4138 and August 2010 VA Form 21-0820. Although the RO separately adjudicated the issue of service connection for major depression and the psychiatric symptom of insomnia in the November 2011 rating decision, the Veteran's appeal for service connection for PTSD encompasses all Axis I psychiatric diagnoses and the symptoms related thereto. In consideration thereof, the Board finds that the issue before the Board is appropriately characterized as service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, as stated on the first page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND After review of the record, the Board finds that additional development is needed before proceeding with appellate review. In this case, there is evidence of mental health treatment during the first period of active service. Specifically, the service treatment records show that, in February 1992, the Veteran participated in a coping skills group at the Fleet Mental Health Unit, Branch Medical Clinic, Naval Station in San Diego, California. At that time, the service staff psychologist wrote that the Veteran's diagnosis was "unchanged" and recommended that all previous recommendations be continued and that the Veteran continue with treatment; however, the noted impression is obscured, and a psychiatric diagnosis is not apparent upon review. Aside from the February 1992 entry in the service treatment records, there are no records pertaining to the Veteran's mental health treatment during his first period of active service currently of record. Also, during the Veteran's second period of active service, he underwent psychiatric evaluation in July 1996, was diagnosed with rule out panic disorder with mild depressive and agoraphobic symptoms, and was to follow up in one to two weeks with psychiatry; however, no subsequent records pertaining to any in-service psychiatric treatment are of record. Notably, service treatment records are only comprised of the outpatient treatment records and discharge summaries of inpatient care and do not include the full inpatient treatment records or behavior health records. See VBA Fast Letter No. 13-09 (Apr. 26, 2013). Because no attempt to obtain the Veteran's service behavioral health records (i.e., mental health treatment records) has been made, a remand is necessary to request the records. The Veteran has also reported receipt of psychiatric treatment prior to service. For example, the Veteran told a treating VA mental health provider, in September 2008, that he had received inpatient psychiatric treatment at the Marian Center in Springfield, Missouri for a period of one or two months when he was thirteen (13) years old following the suicide of his mother. See September 2008 VA mental health initial evaluation note. There are no records pertaining to the Veteran's psychiatric treatment prior to service currently of record; therefore, after obtaining the necessary authorization and consent for release from the Veteran, the RO/AMC should obtain any records from the Marian Center in Springfield, Missouri pertaining to psychiatric treatment received by the Veteran during the period from August 1983 to August 1984 (i.e., when the Veteran was 13 years old). The Veteran has further reported that he had panic attacks and received psychiatric treatment approximately five months after separation from his first period of active duty in May 1992. On the January 1993 Annual Certificate of Physical Condition, the Veteran wrote that he had a stress-related emergency in October 1992 and had been taking sedatives for stress control. Also, on the August 2005 VA Form 21-526, the Veteran indicated that he had received treatment for a psychiatric disorder from October 1992 to the present (i.e., then-August 2005) through the VA Tulsa Outpatient Clinic. Although treatment records from the VA Tulsa outpatient clinic beginning in December 2000 are of record, there has been no attempt to obtain treatment records prior to December 2000. Therefore, on remand, the RO/AMC should request treatment records dated from October 1992 to December 2000 that pertain to the Veteran's treatment at the VA Tulsa Behavioral Medicine Service and/or the Ernest Childers VA Outpatient Clinic and associate them with the record. Moreover, the August 2011 VA (QTC) mental disorders examination previously provided to the Veteran is inadequate because the examiner did not have adequate data on which to render a medical opinion, provided insufficient rationale for the Axis I psychiatric diagnoses found on examination, and did not consider the appropriate standard when providing the medical opinion. Therefore, after the above development has been accomplished, the Veteran should be afforded another mental disorders examination to assist in determining the nature and etiology of his claimed psychiatric disorder, to include consideration of any additional treatment records obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain all behavioral health records for the Veteran's in-service mental health treatment received during his periods of active service (i.e., from March 1988 to May 1992 and from May 1996 to September 1996) and associate them with the record. All negative responses should be properly documented in the record, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 2. Ask the Veteran to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for the inpatient psychiatric treatment he received at the Marian Center in Springfield, Missouri, at age 13, which would have been during the period from August 1983 to August 1984, as well as any other medical providers or medical facility from which he received treatment for any mental health problems prior to his March 1988 entry into active service. After obtaining a completed VA Form 21- 4142, request the pertinent medical records identified by the Veteran. Any documents received by VA should be associated with the record. Any negative responses should be properly documented in the record, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 3. Obtain any records pertaining to the Veteran's psychiatric treatment at the VA Tulsa Behavioral Medicine Service and/or the Ernest Childers VA Outpatient Clinic from October 1992 to December 2000 and associate them with the record. Any and all negative responses should be properly documented in the record, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 4. After actions (1) through (3) have been completed, schedule the Veteran for appropriate VA mental disorders examination to assess the current nature and etiology of the psychiatric disability. All relevant documents should be made available to and reviewed by the examiner in rendering the opinion. The examiner should confirm that the record was reviewed. An interview of the Veteran regarding his relevant psychiatric history, past traumatic events, a mental status examination, and all tests and studies required to respond to the following questions should be performed. The examiner should identify all current Axis I psychiatric disorders by diagnosis and, for each diagnosed disorder, provide the following medical opinions: a) Did the Veteran's psychiatric disability clearly and unmistakably (i.e., obviously and manifestly) exist prior to the first period of service beginning in March 1988 and/or the second period of service beginning in May 1996? Please explain the answer, noting the Veteran's reports of inpatient psychiatric treatment at age 13. b) For any preexisting disorder, was the preexisting disorder clearly and unmistakably (i.e., obvious and manifest) not aggravated (permanent worsening beyond normal progress) during either period of active duty? Please explain the answer, noting the February 1992 service treatment record report of participation in a coping skills group. c) Assuming for purposes of this question that a psychiatric disorder did not preexist service, is it as likely as not (i.e., a probability of 50 percent or greater) that the current psychiatric disability is related to active duty service? In answering this question, the examiner should consider and discuss the significance of the February 1992 service treatment record report of participation in a coping skills group. d) If a current diagnosis of PTSD is found based on examination of the Veteran and review of the record, the examiner should identify the claimed stressor event(s) deemed sufficient to support a PTSD diagnosis. If a PTSD diagnosis is not found, the examiner should explain why the Veteran does not meet the criteria for a PTSD diagnosis and address prior diagnoses of PTSD made by treating VA mental health providers. The examiner is requested to provide a rationale for any opinion provided. In answering all questions, the examiner should review all evidence of record, including the Veteran's reports and history, not just medical documents. In responding to these questions, the examiner should note that temporary or intermittent flare-ups of a pre-existing disease are not sufficient to be considered "aggravation in service" unless the underlying condition, in contrast with symptoms, has worsened. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 5. Thereafter, the remanded claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and the representative should be provided with an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). 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). _________________________________________________ J. PARKER 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).