Citation Nr: 1329225 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 11-15 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from October 1973 to October 1993. The matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim is not limited to the diagnosis identified by the Veteran. In this case, the Veteran has filed a claim for PTSD but the record shows other psychiatric diagnoses. As a result, the issue on appeal has been re-characterized 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. REMAND The Veteran contends that his acquired psychiatric disorder, to include PTSD and major depressive disorder, is due to the traumatic events he experienced in South Korea. Further development of the evidence is necessary prior to an adjudication of the claim. The Veteran has reported that while he was stationed in South Korea, two United States servicemen were killed by North Korean soldiers. The Veteran reported that this incident caused tension between the United States and North Korea. At a July 2009 private examination, the Veteran stated that after this event he felt afraid because he was worried that war was going to break out, nuclear weapons would be used, and everyone was going to be killed. In an August 2009 statement, the Veteran reported that after the event his unit was deployed to "war time fighting" position (Red Alert) to the south of Seoul and were prepared to deliver nuclear weapons if necessary. He reported that his unit was on Red Alert for approximately two weeks following the incident. The Veteran also stated that the incident has haunted him ever since because waiting for the tension between the United States and North Korea to subdue was very stressful. The Board notes that 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The record indicates that the Veteran has been diagnosed with PTSD by a private physician. However, since there is no diagnosis of record of PTSD by a VA or VA-contracted psychiatrist or psychologist based on fear of hostile military activity, a remand is required to obtain an opinion as to whether this stressor is sufficient to support a diagnosis of PTSD. The Board notes that in support of his alleged stressor the Veteran has submitted a lay statement by E.C.C., a fellow soldier. The Board also observes that the Veteran has submitted a similar statement on behalf of E.C.C's claim of service connection for a psychiatric disorder, including PTSD concerning the incident noted above. The Board finds that given this situation corroboration from someone without a pending claim based on the same alleged stressor would be helpful in adjudicating this claim. Therefore, requests should be made to the applicable service department for the purpose of verifying the alleged stressors. Furthermore, a private physician diagnosed the Veteran with major depressive disorder based on the Veteran's account of in-service stressors. As such, a remand is necessary to determine the nature and etiology of the Veteran's diagnosed major depressive disorder. Accordingly, the case is REMANDED for the following action: 1) The RO/AMC should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers, who have treated him for his acquired psychiatric disorders. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review 2) The AMC/RO should request that an appropriate agency, to include JSRRC, provide any available information that might corroborate the Veteran's alleged in-service stressor, to include witnessing the attacks of fellow soldiers while stationed in Korea and subsequently finding out that they were killed. Specifically, a copy of the Veteran's unit history and any incident reports for August 1976 should be obtained. Additionally, steps should be taken to verify whether Edward C. Carter served with the Veteran while in Korea. Information regarding his unit assignment would be helpful in this regard. These agencies should be provided with copies of the Veteran's personnel records obtained showing service dates, duties, and units of assignment, as well as copies of PTSD stressor statements in support of the claim, and any additional relevant evidence associated with the claims folder as a result of this remand. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file. 3) After the foregoing, schedule the Veteran for a VA examination to determine whether any acquired psychiatric disorder, to include PTSD and depression, is related to the Veteran's service. The claims file and a copy of this remand must be made available to the examiner for review. All indicated testing should be conducted. The examiner should address the following: A. Please identify all of the Veteran's psychiatric diagnoses. Specifically state whether the Veteran has a current diagnosis of PTSD. B. If a diagnosis of PTSD is appropriate, the examiner should state whether there is a link established by medical evidence between current symptoms and an inservice stressor. If so, the examiner should identify such stressor. Specifically, the examiner should state whether it is at least as likely as not (i.e. at least a 50-50 probability) that the Veteran's claimed in-service stressor resulted in a current diagnosis of PTSD. C. If a diagnosis of PTSD is appropriate, the examiner should also specify whether (1) his alleged stressor of observing service men being assaulted by North Korean soldiers and learning later that they were killed involved a psychological or psycho-physiological state of fear, helplessness or horror. 2) If so, whether such stressor was sufficient to result in a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. The examiner should address whether the Veteran's claimed stressor (i.e. fear of an impending war between the United States and North Korea) is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed related stressors. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. Additionally, if PTSD is not diagnosed, the examiner is asked to specifically comment on the favorable private medical opinions dated July 2009 and October 2011. D. If the examination results in a psychiatric diagnosis other than PTSD and with respect to the private Dr. H. J. diagnosis of Major depressive disorder, the examiner should offer an opinion as to the etiology of each non- PTSD psychiatric disorder, to include whether it is at least as likely as not (at least a 50-50 probability) that any currently diagnosed psychiatric disorder, other than PTSD, had its onset during active service or is related to any in-service disease, event, or injury. If major depressive disorder is not diagnosed, the examiner should explain why the diagnosis was not made. Additionally, if major depressive disorder is not diagnosed, the examiner is asked to specifically comment on the favorable private medical opinion dated October 2011. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO should readjudicate the Veteran's claim. The RO should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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. OSBORNE 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).