Citation Nr: 1329271 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-46 815 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety. REPRESENTATION Appellant represented by: Robin M. Webb, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel REMAND The Veteran had active military service from February 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a March 2012 decision, the Board denied service connection for a psychiatric disorder. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which granted a joint motion for remand in November 2012. Other issues denied by the Board were not appealed to the Court and thus are no longer on appeal. The case has been returned to the Board for further development and adjudication. In the joint motion, the parties to the appeal agreed that the development of this matter was inadequate for the purposes of compliance with VA's duty to assist under 38 U.S.C 5103A. First, it was noted that reasonable efforts had not been made to confirm the Veteran's claimed stressor of having gone overboard (or in other statements being thrown against a rail and nearly going overboard) during a severe storm while serving on the U.S.S. Neosho in the Mediterranean Sea. It was agreed that any reliance by the Board on a UNYSIS Weather report of record was in error because it did not contain any weather reports for the Mediterranean Sea. Additionally it was noted that the Veteran did not claim that a hurricane or tropical storm affected his ship, only a violent storm. (The report had only addressed data for hurricanes and tropical storms.) Thus, corrective action must be undertaken to broaden the search for evidence of a storm in the Mediterranean that would support the Veteran's claimed stressor. Although the Veteran has indicated that he was not certain which month in 1971 the storm took place, he did suggest that it was around July or August 1971. See, e.g., July 2009 notice of disagreement. The Veteran's attorney, in a July 2013 brief has argued for broadening the dates of the search to encompass the entire time he served aboard the U.S.S. Neosho in the Mediterranean Sea--between April and October 1971. Next, the joint motion points out that the June 2011 VA examination, upon which the denial of service connection was in part based, had failed to adequately address whether in- service complaints of "nerves" on December 7, 1970 was as likely as not a manifestation of in-service onset of any current psychiatric disability. While the joint motion determined that an addendum to this June 2011 examination to address this issue would suffice, the Veteran's attorney argued that re-examination is required to adequately address this issue. The Veteran's attorney has also suggested that additional records in VA's custody should be obtained, to include VA treatment records and VA records of continued treatment for psychiatric problems. Given the need for remand of this matter for further development, an attempt should be made to obtain the SSA records as well as additional VA treatment records. In view of this, the Board finds that another examination should be scheduled to fully address all the pertinent evidence and ascertain the current nature and etiology of any current psychiatric disorder. Accordingly, the case is REMANDED to the RO for the following action: 1. Attempt to corroborate the occurrence of storms in the Mediterranean Sea between April 1 and October 31, 1971. The sources should not include the 1971 Annual Hurricane/Tropical Data for Atlantic/Caribbean Report submitted by UNYSIS as this has been deemed inadequate for the purpose of obtaining information about storms in the Mediterranean Sea. Also, action to corroborate the USS Neosho's location relative to any identified Mediterranean storms should be taken. Ship records that might show events such as a man overboard should be sought. All records and/or responses received should be associated with the claims file. The Veteran should be contacted and asked to provide any additional information that might help corroborate his story. He should be specifically asked details of what happened--how long he was in the sea after being swept overboard during the storm, how he was rescued, etc. Any information provided by the Veteran should be further investigated as required to verify these events. 2. Request from SSA a copy of any disability determinations concerning the Veteran, as well as copies of all medical records underlying any such determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding treatment with respect to the Veteran's claimed psychiatric disorder that the Veteran has recently received from January 2012 to the present. Include records from the Lexington, Kentucky VA medical center. All records and/or responses received should be associated with the claims file. 4. Provide the Veteran with another VA psychiatric examination to determine the nature and onset of each diagnosed psychiatric disorders. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be performed. Psychological testing should be done to help determine whether the Veteran suffers from PTSD. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed and address the following: (a) The examiner is asked to express an opinion as to whether the Veteran meets the DSM-IV criteria for PTSD. If the examiner finds that the Veteran does, in fact, meet the criteria for a diagnosis of PTSD, he or she should identify the specific stressor(s) underlying the diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s). In the report, the examiner must address the relationship between any diagnosed PTSD and whether his symptoms are related to any identified and corroborated stressor. Specific consideration should include events surrounding the Mediterranean storm and the Veteran's report of having felt guilty for his participation in war. (b) The examiner should address all current psychiatric complaints and the evidence from the Veteran's service treatment and personnel records, including the record showing treatment for "nerves" on December 7, 1970, as well as the service personnel records showing the Veteran had behavioral problems, evidenced by multiple disciplinary actions for various infractions. The examiner should address whether such treatment for "nerves" and evidence of behavior problems could be evidence of the onset of a current psychiatric disorder. If a non-PTSD psychiatric diagnosis is provided, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disability is related to active military service. A complete rationale for any opinion expressed must be included in the examination report. The medical reasons for accepting or rejecting the Veteran's version of events and any statements of continuity of symptoms since service should be set forth in detail. If an opinion cannot be provided without resort to speculation, the examiner must provide supporting rationale for that statement. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. 5. After completing the development requested above, readjudicate the claim for service connection for a psychiatric disorder. If a benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The appellant 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).