Citation Nr: 1329520 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-00 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a psychiatric disability, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from September 1970 to April 1972, including service in Vietnam from March 1971 to March 1972, and from May 1976 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Jurisdiction over this case was subsequently transferred to the San Diego, California RO. In January 2010, the Veteran withdrew his request for a Travel Board hearing. While service connection for psychiatric disability other than PTSD has been denied previously, the matter of service connection for PTSD is sufficiently new to require a de novo review of the claim. The U.S. Court of Appeals for Veterans Claims (Court) has held that in claims involving unrepresented Veterans, the Board must broadly construe claims, and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has characterized this issue as service connection for psychiatric disability, including PTSD. 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 Board has reviewed the medical and lay evidence of record and finds that additional development is required before deciding the claim on appeal. The Veteran contends that he has PTSD primarily as a result of being forced to breathe benzene tear gas during advanced individual training (AIT) in December 1970. He appears to claim PTSD both from the experience of tear gas training and from claimed physiological effects of that exposure, also asserting that his claimed PTSD was aggravated by not receiving treatment for claimed respiratory complaints. He also contends that he has PTSD as a result of an alleged homicide of his friend around December 1971. He explains that his friend regularly visited once a month and told the Veteran in detail how to fix the only computer that existed in Vietnam "in case something might happen." The Veteran believes that the Army ruled the friend's death as a suicide, but that the friend was actually killed because the friend would not say that the Veteran broke the computer. He reports that the friend's body was brought up from the South China Sea a day later. In February 2010, the Veteran identified the name of his friend and included casualty data from www.VirtualWall.org, reflecting that J. D. died in November 1971 from drowning or suffocation. J. D.'s full profile reflects that he died on the first day of his tour in Vietnam and that his body was not recovered. The Veteran's DD214 from his first period of service lists his occupational specialty as clerk typist and does not reflect any awards or medals indicative of combat. His second period of service was during peacetime, and he does not claim PTSD as a result of events during that period of service. His service treatment records from his first period of service reflect that he was diagnosed with "borderline personality." Service treatment records and post-service statements from the Veteran also reference use of marijuana since age 14 and use of heroin before and during military service in Vietnam. Post-service statements also reference use of opium during Vietnam service. Post-service private and VA treatment records reflect many diagnosed mental disorders, including schizoid personality and paranoid schizophrenia, major depression, delusional disorder, cyclothymia, bipolar disorder, and polysubstance abuse. A partial April 1983 treatment record from the Nashville VA Medical Center (VAMC) reflects that the Veteran complained of some difficulty with concentration following his tour in Vietnam. A November 1983 VA treatment record reflects that the Veteran sought a psychiatric evaluation at the advice of his attorney. He did not request medication or referral to the Vietnam group, but was informed that he may use available services for Vietnam-related problems if necessary. During an August 2002 initial private psychiatric evaluation with K. Walden, M.D., the Veteran's chief complaint was "no problems, just a consultation," and he admitted that he was "trying to get VA benefits for PTSD." He disclosed using opium and smoking heroin in Vietnam and identified past psychiatric history consisting of a three-year, court- ordered hospitalization in a state hospital. The assessment was delusional disorder. An August 2006 initial psychiatric evaluation by K. Trevor, D.O., reflects that the Veteran reported being a "combat veteran" and that he had "been wanting to be diagnosed with PTSD for a long time, and somebody needs to finally do it" and send a letter to VA. He explained that he needed a current diagnosis, a stressor, and a previous diagnosis. He stated that he was "upset that he did not get to be a clerk in the military, but had to 'prove [his] manliness' and go into combat." He believed he was "coaxed into combat after receiving a 'trophy.'" He recalled facing some toxic exposures during military duty, but that the "actual warfare" traumatized him the most. He also explained that it was "quite normal to use opiates/heroin, and 'reefer' there" and believed that they were "'natural' and 'medicinal' for his lungs." He mentioned being caught with no weapon after a bomb went off and expecting to be caught and killed by the Vietnamese. He also described "conspiracies and [found] it suspicious that his friend allegedly 'committed suicide,' but he may have actually been murdered, since [the Veteran] didn't sense his friend had been suicidal back then." The diagnosis included PTSD. A November 2006 letter from Dr. Trevor reflects that she "agreed to state that there is a possibility that his chemical exposure [to toxic levels of tear gas, including benzene] could have injured his respiratory and central nervous system, and that it possibly contributed to his mental health problems, such as PTSD." The Veteran submitted a June 2007 treatment record from Dr. Trevor detailing that their "good rapport" was lost in March 2007 when she asked him to try another medication. Dr. Trevor noted that the Veteran's delusions of trying to hire her were getting more intense, his sexually inappropriate statements to her were increasing, and his "demands about writing letters for him on behalf of his Federal 'case' were escalating." The Veteran wrote on the treatment record that their rapport "was never good. I just needed a [diagnosis]." (Emphasis in original). While the Veteran has previously claimed entitlement to various mental disorders, which have been denied by the RO and the Board, he has not been afforded a VA examination specifically for his claimed PTSD. The Board notes that the Veteran is competent to attest to tear gas training and his perceptions or experiences of that event; however, he is not competent to attest to the physiological effects of such exposure on his mental health. He has also presented competent evidence that someone he knew died during military service; though the circumstances of that death as listed in the official records varied significantly from the Veteran's recollections. Therefore, the AMC/RO should arrange for a VA PTSD examination to determine whether he has PTSD, or any other psychiatric disorder, related to events during military service. In addition, the Veteran has mentioned on at least one occasion in August 2006 to K. Trevor, D.O., that he was traumatized by "actual warfare." Although his report to Dr. Trevor that he was a "combat veteran" is not supported in his service records, including his DD214, consideration should be given as to whether service connection for PTSD is warranted under the provisions of 38 C.F.R. § 3.304(f)(3). Pursuant to 38 C.F.R. § 3.304(f)(3), 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 posttraumatic stress disorder 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. Prior to arranging for a VA examination, the AMC/RO should request and associate with the claims file additional records that may be pertinent to the Veteran's claim. Specifically, the claims file reflects that the Veteran is receiving disability benefits from the Social Security Administration (SSA). Complete treatment records, including those from 1983, from the Nashville VAMC should also be obtained. Records received in June 2001 from the Taylor Hardin Secure Medical Facility indicate that upon his psychiatric admission in September 1996, an admission psychiatric evaluation was not required because he had been discharged from the facility for less than six months. Complete psychiatric treatment records should be requested from the date of the Veteran's earliest admission until his final discharge. Finally, statements from the Veteran reflect that he moved to Phoenix, Arizona permanently around 2011. All pertinent treatment records from the Phoenix VA Health Care System (HCS) should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should attempt to obtain and associate with the claims file the following records: (a) records from the Social Security Administration; (b) complete treatment records from the Nashville VAMC, including those from 1983; (c) complete psychiatric treatment records from Taylor Hardin Secure Medical Facility in Tuscaloosa, Alabama from the date of the Veteran's earliest admission, which appears to be in 1995 or 1996, until his final discharge; and (d) all treatment records pertinent to the claim for PTSD from the Phoenix VA HCS. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran or determines that any records are unavailable, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard to allow him the opportunity to obtain and submit those records for VA review. 2. Thereafter, the RO should schedule the Veteran for an examination by a VA psychiatrist to determine whether the diagnostic criteria for PTSD are met. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. The examiner should consider the Veteran's contentions that he has PTSD from the experience of tear gas training, from the physiological effects of tear gas exposure, and from the death of a friend in November 1971. The examiner should determine whether the veteran currently suffers from PTSD related to his fear of hostile military or terrorist activity while on active duty and whether it is adequate to support a diagnosis of PTSD. 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. If a psychiatric disability other than PTSD is diagnosed, the examiner should indicate whether it is likely as not (50 percent probability or greater) related to the Veteran's active service. The examination report should include the complete rationale for all opinions expressed. The examiner should provide a rationale for the opinions. 3. After undertaking any other development deemed appropriate and ensuring that the requested actions are completed, the RO or AMC should readjudicate the claim of service connection for PTSD. If the benefit sought is not granted in full, the Veteran and his representative should be furnished with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ THOMAS J. DANNAHER 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) (2013).