Citation Nr: 1329204 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-12 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. He also apparently served with the U.S. Army Reserve (UASR) after his period of active duty until his retirement from the USAR in 2008; presumably this includes periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In August 2010, the Veteran testified before the undersigned during a Board hearing held at the RO. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, when a claimant identifies a claim for service connection for PTSD, the claim cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any psychiatric disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms described, and the information the claimant submits or that VA obtains in support of the claim. Accordingly, the Board has recharacterized the Veteran's original claim for service connection for PTSD to encompass any and all psychiatric disorders reasonably raised by the record and such is reflected on the title page. 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 on his part. REMAND Unfortunately, a remand of the Veteran's claim on appeal is required. 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 claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). During his August 2010 Board hearing, the Veteran testified that his PTSD symptoms, including nightmares, flashbacks, and sleep problems, began while he was in Vietnam and not when he was laid off from work only a month or so before the January 2009 VA mental examination. In fact, he testified that these symptoms stayed the same after his layoff and did not increase in severity and that he was laid off due to the economy and not to his psychiatric condition. In fact, the Veteran testified that he had been called back to work at an automotive supplier the day before his Board hearing and that he had worked the night shift before appearing at his hearing. The Veteran and his representative dispute the opinion of the January 2009 VA examiner that the Veteran did not have PTSD and that his diagnosed adjustment disorder appeared related to his then-current unemployment and the resulting financial strain rather than due to his military service. At the time of the Board hearing, his representative requested a remand for a medical opinion that would address the Veteran's 40 years of PTSD symptoms which, he claimed, the January 2009 VA examiner had ignored. Information in the claims file indicates that the Veteran served in Vietnam from September 1969 to September 1970. While his DD Form 214 shows that his military occupational specialty was as a court reporter, he told the VA examiner that while in Vietnam he was also assigned guard duty. He reported two in-service stressors: a rocket attack on the airfield when all the helicopters at the base were annihilated, which occurred in the middle of his tour in Vietnam, and an assault on the camp by the Vietcong involving extensive firing. The VA examination report noted that the Veteran reported feeling scared during this incident. In a November 2008 statement, the Veteran reported that these incidents occurred at Camp Gorvad, an Army base, in September 1969 and November 1969. The U.S. Army Joint Services and Research Center (JSRRC) stated later in November 2008 that the unit history of the 15th Administrative Company of the 1st Cavalry Division Support Command did not document any mortar or rocket fire on September 16, 1969 or any specific attacks sustained by the 15th Administrative Company. However, a daily staff journal of the 1st Cavalry Division did verify an attack at Camp Gorvad, Bien Hoa on September 18, 1969. Apparently, the JSRRC was only requested to verify a stressor which occurred on September 16, 1969, and not any that occurred in November 1969. In any event, since the January 2009 VA mental examination, the criteria for service connection for PTSD, and, specifically corroboration of PTSD stressors, have changed. This amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to the Veteran's fear of "hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. The amendment acknowledges the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. The amended criteria apply to claims appealed before July 12, 2010, but not decided as of that date, as in this case. See 75 Fed. Reg. 39,843 (July 13, 2010). The Board notes that entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) of VA regulations, that is, a diagnosis which meets the criteria in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence between current symptomatology and the claimed in-service stressor. If the claimed stressor is related to combat, service department evidence that the Veteran engaged in combat or that the Veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran's DD Form 214 does not indicate that he participated in combat, but the Veteran's submissions indicate that his postings to guard duty in Vietnam occurred in the midst of mortar and rocket attacks at his unit's base in Vietnam. As noted above, the JSRRC to date only attempted to verify such attacks on one date in September 1969. The Board notes that the report of the January 2009 VA examination indicated that the Veteran was scared during one of his claimed stressor incidents in Vietnam. Assuming this to be the case, the new PTSD regulations would affect any questions regarding the corroboration of the Veteran's claimed stressors. The Veteran's service personnel records confirm his service in Vietnam. As the Veteran's service in Vietnam has been confirmed by the evidence of record, the revisions to 38 C.F.R. § 3.303(f), cited above, apply to this case. Since the January 2009 VA mental examination and opinion appear to be inadequate and predated the recent amendments to the PTSD regulations, the Board finds that a remand is necessary so that a medical opinion can be obtained regarding whether the Veteran's in-service stressors are adequate to support a diagnosis of PTSD. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board needs additional information in order to make a determination whether the Veteran's in-service stressors are adequate to support a PTSD diagnosis. As such, on remand, the Veteran shall be afforded a VA examination to determine whether the Veteran currently has PTSD and, if so, whether such is related to his claimed in-service stressors. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). On remand, the RO/AMC also should contact the JSRRC and request that the JSRRC obtain the unit history of the 15th Administrative Company for the 1st Cavalry Division Support Command, for the period between September 1969 and September 1970, in particular for the months of September and November 1969. The JSRRC also should obtain the Daily Staff Journals submitted by the 1st Cavalry Division for this same period of time. The JSRRC then should report whether the Veteran's unit, or the base at which it was stationed at the time, was subjected to firefights with the enemy and mortar and rocket attacks from the enemy during this time period. It is also important to note that active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). Thus, while the Veteran achieved veteran status from his active service from February 1969 to September 1970, this veteran status does not apply to the subsequent periods of training duty without a showing of injury or (in the case of ACDUTRA) disease incurred or aggravated in the line of duty. In this appeal, therefore, the Board must be concerned with all the Veteran's verified periods of ACDUTRA as well as his period of active duty. Depression, anxiety, and PTSD are diseases rather than injuries; therefore, periods of INACDUTRA are not applicable to such a claim for service connection because the only diseases that may be service- connected for incurrence during such duty periods are acute myocardial infarction, cardiac arrest, or cerebrovascular accident. See 38 C.F.R. § 101(24). Currently, personnel and treatment records associated with the Veteran's claims file are limited to his period of active duty. As the Veteran's periods of USAR service may be relevant to the Veteran's claim, an effort should be made on remand to obtain the Veteran's complete service personnel and treatment records, to include records related to periods of ACDUTRA and INACDUTRA. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall take appropriate steps to secure all of the Veteran's active duty and Reserve service treatment records and all of his active duty and Reserve service personnel records, until his reported retirement from the USAR during 2008. The records request(s) should be addressed to the National Personnel Records Center, the service department, the U.S. Army Reserve, or any other appropriate source as necessary to obtain complete records. These records should be associated with the claims file. If there are no additional service treatment records or service personnel records, documentation used in making those determinations should be set forth in the claims file. 2. After receipt of the requested information, the RO/AMC shall determine whether the Veteran was in ACDUTRA or INACDUTRA duty status when he made any complaint regarding a nervous condition or psychological complaint, or when he was treated for a psychological or psychiatric complaint, or when he was diagnosed for a psychiatric or psychological disorder. 3. The RO/AMC shall contact the JSRRC (previously known as the U.S. Center for Unit Records Research (CURR)), and request that JSRRC obtain the unit history of the 15th Administrative Company, 1st Cavalry Division Support Command, for the period between September 1969 and September 1970, in particular for the months of September and November 1969. The JSRRC also should obtain the Daily Staff Journals submitted by the 1st Cavalry Division for this same time period. The JSRRC then should report whether the Veteran's unit, or Army base Camp Gorvad, or other location at which the Veteran's unit was stationed, was subjected to firefights with the enemy and mortar and rocket attacks from the enemy during this time period (September 1969 through September 1970). The RO/AMC should associate with the claims file any correspondence confirming it contacted the JSRRC along with that agency's response. In the event that unit history, Daily Staff Journals, higher command history, or other records which would show the activities at the base where the Veteran was stationed are unavailable, or a further search for relevant unit or other history would prove futile, that finding should be reduced to writing and also associated with the claims file. 4. The RO/AMC shall contact the Veteran and his representative and obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the Veteran for his psychiatric disorders and whose records are not found within the claims file. Of particular interest are any outstanding records of evaluation and/or treatment for any psychological or psychiatric symptoms from the past 40 years. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims file. The Veteran should also be afforded the opportunity to submit or identify any non- clinical records, such as employment medical or administrative records, statements of observations of supervisors, fellow employees, or others, that might be relevant to assist the Veteran to establish his claim. 5. After receipt of the requested information, the Veteran shall then be afforded an appropriate VA mental examination so as to ascertain the extent, nature, and etiology of any acquired psychiatric disorder. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner in conjunction with conducting the examination of the Veteran. The examination report should reflect a review of the claims folder. Following this review, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to address the following: (a) The examiner shall identify each current psychiatric diagnosis, to include PTSD; the examiner should specifically state whether a diagnosis of PTSD may be assigned consistent with the criteria for a diagnosis under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). If the diagnostic criteria to support a diagnosis of PTSD have been satisfied and a diagnosis of PTSD is deemed appropriate, the examiner shall comment upon any link between the current symptomatology and one (or more) of the in-service stressors reported by the Veteran. In so doing, the examiner shall specifically address if the Veteran's claimed stressor relates to the Veteran's fear of in-service hostile military or terrorist activity. (c) The examiner shall opine as to whether it is at least as likely as not (a 50 percent probability or more) that any diagnosed PTSD is related to the Veteran's period of active duty from February 1969 to September 1970 or to any verified period of ACDUTRA. In doing so, the examiner must acknowledge any reports of a continuity of psychiatric symptoms since service. (d) If, and only if, the examiner does not diagnose PTSD, the examiner shall explain why the Veteran does not meet the criteria for a diagnosis of PTSD. The examiner shall then identify and diagnose any currently manifested psychiatric disorder, other than PTSD, and describe the manifestations of each diagnosed disorder. For each such diagnosed psychiatric disorder, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in or is a result of the Veteran's period of active duty from February 1969 to September 1970 or to any verified period of ACDUTRA. The VA examiner should provide a complete rationale for all opinions and conclusions reached. The examiner should offer a detailed analysis for all conclusions and opinions with references to date in the Veteran's claims file, including in- service and post-service medical records and the Veteran's lay assertions. In providing these opinions, the VA examiner also should discuss the medical opinion found in the January 2009 VA examination. The examiner should explain why he or she agrees or disagrees with the conclusions stated in the 2009 examination report regarding the appropriate diagnosis for the Veteran's current psychiatric disorder(s) and the likelihood of any relationship between a currently-diagnosed disorder and the Veteran's military service. 6. Thereafter, the RO/AMC shall readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ Tresa M. Schlecht, 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).