Citation Nr: 1329269 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 04-42 693 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Blackwelder, Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from January 12, 1976 to December 22, 1976. This appeal initially came to the Board of Veterans' Appeals (Board) from an April 2004 rating decision. In November 2009, the Board denied the Veteran's claim for service connection for PTSD. The Veteran then appealed the denial to the Court of Appeals for Veterans Claims (Court). Pursuant to an October 2012 memorandum decision, the Court vacated the Board decision and remanded it for additional consideration. The Board notes that while the Veteran was previously represented by a private attorney in this case, he fired his attorney and has not appointed a new attorney, agent, or representative. The Veteran is thus unrepresented in this case. When a claimant makes a claim, he is considered to be seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, in the November 2009 decision, the Board denied the Veteran's claim for service connection for PTSD and referred a claim for service connection for an acquired psychiatric disability, other than PTSD. However, the October 2012 memorandum decision found that the later claim should have been remanded, rather than referred. Having reviewed the evidence of record once again, the Board is of the opinion that the Veteran's psychiatric picture is sufficiently unclear that the claim being remanded should be one of service connection for an acquired psychiatric disability, to include PTSD. Having reviewed the Veteran's numerous filings submitted since the memorandum decision, it is noted that the Veteran repeatedly asserts (such as in his motion to advance his case, received in February 2013) that he had claims pending but unadjudicated and he believes an "earlier effective date" is warranted. However, the Board is unable to discern a specific claim here, as the Veteran failed to specify what issue or issues he is referring to. It is noted however that this suggestion of the need for an earlier effective date appears to arise within the context of a claim for service connection and would therefore not become relevant unless service connection were to be granted. If the Veteran does wish to file a claim for an earlier effective date, he should do so with the RO and should specify what effective date he is challenging. As an aside, the Board would like to point out for the Veteran's understanding that his claims for service connection were specifically denied in October 1977, January 1980, and June 1982 based on his repeated failure to report to scheduled VA examinations. He was notified of each decision, but did not appeal. Following the 1982 denial, the Veteran did not file another claim with VA until April 2002, which is the appeal that is being addressed here. In a December 2012 claim the Veteran stated that he wanted to file an 1151 claim for his back; increased rating claims for tinnitus, bilateral hearing loss, thigh scar, residual of a gunshot wound; a claim for special monthly compensation; and a claim for a temporary total disability rating. As such, these issues have been raised by the record, but it is unclear whether they have been adjudicated by the Agency of Original Jurisdiction (AOJ) (a VCAA letter was sent in January 2013). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. It is noted that the Veteran also listed a number of psychiatric claims including service connection for bipolar disorder and PTSD, but these issues are already on appeal and are being remanded, not referred, by this decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND This is a highly complex case which has a long procedural history. Initially, it is necessary that the Veteran understand the current procedural status of his case. In recent statements, he seems to believe that the Court granted his claim and that the Board must now implement that grant. That is incorrect. The Court vacated the Board's prior decision, finding that an adequate statement of reasons and bases had not been previously given - in other words, the Board simply needs to explain better the reasons for the decision. The Court instructed the Board to ". . . reexamine the evidence of record, including the April 2003 VA diagnosis of PTSD, and conduct any additional development necessary to adjudicate the claim." The Board has done so, and, for the reasons given below, ultimately concludes that a decision cannot be reached without first seeking additional clarification from a medical professional. The Board will attempt to lay out the key aspects of this case to allow the medical professional to have a full understanding of the Veteran's claim. The issue presented here is entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran has long maintained that he has PTSD that was either caused or aggravated by his time in military service. The Veteran had active service in the U.S. Marine Corps from January 12, 1976 to December 22, 1976. The Veteran has reported several potential stressors in his life, including being physically abused by his dad, being sexually abused at 13, being physically abused by a drill sergeant, being harassed by a military investigator, and shooting himself in the thigh. The evidence of record confirms that a drill sergeant was court martialed and convicted of abusing a number of Marines, including the Veteran. Service treatment records also confirm that the Veteran shot himself in the thigh. The Veteran believes the two confirmed in-service stressors have resulted in him having PTSD. The Veteran has received considerable psychiatric treatment both during and following service which has resulted in a number of Axis I and Axis II psychiatric diagnoses. During service, he accidentally incurred a gunshot wound to the thigh. See the Veteran's January 1977 Report of Accidental Injury where he states he picked up a loaded gun left in his car by a friend when it bumped the steering wheel and discharged versus November 2002 Report of Accidental Injury where he states he intended to commit suicide. While hospitalized in 1976, he underwent a psychiatric evaluation. The tentative diagnosis was emotionally unstable personality with signs of immaturity and hypomanical behavior which was felt to have existed prior to service. The first post-service psychiatric treatment shown by the record was in August 1979 when the Veteran was hospitalized at the VA Medical Center in Cleveland. The admission was because "his attorney felt it would look better in court if he had been in a psychiatric hospital"; he was awaiting trial for manslaughter in the child abuse death of his nine- month old daughter. Diagnoses included adjustment reaction of adult life and character disorder (passive aggressive type, explosive type). There was no further communication from the Veteran until 2002, and the VA treatment records start in October 2001. Through the years, the Veteran has been given a number of psychiatric diagnoses including substance abuse induced mood or anxiety disorder, major depressive disorder, and bipolar disorder. The Veteran has also been diagnosed with an Axis II personality disorder on occasion. However, the vast majority of the medical professionals who have evaluated the Veteran have failed to assign a diagnosis of PTSD, despite being fully apprised of the Veteran's history and his requesting such a diagnosis be rendered. The Veteran has on occasion reported to medical professionals that he has PTSD, but essentially the only medical evidence of record suggesting that he might have PTSD was an April 2003 VA treatment record which noted that the Veteran's past medical history included depression, polysubstance dependence, past substance induced psychotic disorder with hallucinations, resolved, anxiety, and "PTSD from military and childhood abuse trauma with repeated disturbing memories[;] past physical abuse from father and past physical and verbal abuse in the service." The primary diagnoses were depression and anxiety, as well as polysubstance dependence in remission, and the secondary diagnoses were past substance induced psychotic disorder with hallucinations, and "PTSD" from military and childhood abuse trauma with repeated disturbing memories. However, there was no explanation provided in this treatment record as to how the Veteran actually met the DSM-IV criteria for PTSD. The Veteran was subsequently provided with a VA examination in July 2009, but the examiner concluded that with respect to the Veteran's reported PTSD symptoms, there was no evidence of persistent re-experiencing of the traumatic event, there was evidence of efforts to avoid thoughts, feelings, or conversations associated with the trauma, there was evidence of irritability and outbursts of anger, and there was evidence of clinically significant distress or impairment in social, occupational, or other important areas of functioning. With respect to re-experiencing symptoms from Criterion B on the clinically-administered PTSD scale, there was no evidence of recent experiences of intrusive memories, and there was evidence of mild, chronic/infrequent distressful memories triggered by cues. With respect to avoidance and numbing symptoms from Criterion C, it was reported that the Veteran avoided talking or thinking about the trauma, with chronic duration and mild severity. Finally, with respect to Criterion D, there were no sleep problems evident, but there was evidence of chronic mild to moderate irritability and anger. The Axis I diagnosis was mood disorder not otherwise specified which the examiner stated was not related to the Veteran's military service. The examiner opined that the Veteran did not meet the threshold for PTSD as he did not satisfy PTSD criteria B, C or D. In the memorandum decision, it was suggested that the Board had supplied insufficient reasons and bases for why the April 2003 treatment record did not establish PTSD. The Board could attempt to provide enhanced reasons and bases without additional remand, but hopes that an additional medical opinion will help better address the Court's concerns. It is also noted that given the appellate status of this case, treatment records have not been associated with the Veteran's claims file since April 2009. While the Veteran has not specifically reported receiving any psychiatric treatment since that time, given the extensive treatment he received previously, it is highly probable that the Veteran has continued to receive treatment, and therefore any records from such presumed treatment should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any private psychiatric treatment he has received, to include whether he received any psychiatric treatment while incarcerated. If any private treatment is identified, take the appropriate steps to obtain such records. 2. Obtain VA treatment records from April 2009 to the present. 3. Contact the Social Security Administration (SSA) and request any records for the Veteran, to include any decisions granting or denying benefits and any records underlying such a decision. 4. Only after obtaining as much of the above evidence as is available, then schedule the Veteran for a VA examination. The Veteran's claims file, including a copy of this remand, should be provided and a complete rationale should be provided for any opinions expressed. It is noted that the Veteran may have been barred from receiving treatment at the Bay Pines VAMC and therefore, he may need to be scheduled elsewhere. The examiner should thoroughly review the file, including the service records and other medical records dated close to service, as the Veteran's report of pre- service and service-related events is not always consistent. The examiner should specifically address the following questions: a) Is it at least as likely as not (50 percent or greater) that the Veteran either currently has, or has had for any distinct period since 2002, PTSD pursuant to the DSM-IV criteria? In answering this question, the examiner should discuss the July 2009 VA examination which concluded that the Veteran did not meet the DSM-IV criteria for PTSD, and provided a detailed analysis for why he did not meet the criteria, and the April 2003 VA treatment record which listed PTSD from military and childhood abuse trauma, among the multiple psychiatric diagnoses which were assigned to the Veteran at that time. If the examiner concludes that the Veteran has not met the DSM-IV criteria for PTSD at any time since 2002, the examiner should explain why the April 2003 record does not establish that the Veteran had PTSD at that time. The examiner is informed that it has been confirmed that the Veteran was abused by his drill sergeant in service and that the Veteran shot himself in the leg during service. b) Is it is at least as likely as not (50 percent or greater) that a current Axis I acquired psychiatric disability, other than PTSD, either began during or was otherwise caused by the Veteran's military service. In addressing this question, the examiner should address the suggestion that the Veteran has an Axis II personality disorder. c) If it is concluded that the Veteran has an Axis II personality disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or greater) that the personality disorder was aggravated (meaning that the underlying disorder which pre-existed service was made permanently worse) by the Veteran's military service. 5. Then readjudicate the appeal. If the claims remain denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. The Veteran is hereby advised that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 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). _________________________________________________ MICHELLE L. KANE 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).