Citation Nr: 1331394 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 11-00 810 ) 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 anxiety disorder, panic attacks disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Margaret Costello, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from July 1977 to July 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of March 2008 and April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In March 2011, the Veteran presented testimony in a Travel Board hearing before the undersigned. A transcript of the hearing has been associated with the claim file. The Board has reviewed the Veteran's Virtual VA file and finds there are no additional relevant records contained therein. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disorder. He argues that he began to have panic attacks in service after being sexually molested, and the panic attacks have continued since service. He asserts that the panic attacks were the initial manifestations of his now diagnosed psychiatric disability. Service treatment records dated in March 1978 show the Veteran complained that two or three times a week he felt that his heart suddenly beat faster and he had a hard time breathing. It was noted that he could have been reacting to the spring air. Then in May 1978, the Veteran was seen for complaints of breaking out in a cold sweat, nausea, difficulty breathing, and increased pulse on a weekly basis. He denied a history of asthma or dizziness, and denied having any chest pains. An impression was not provided at the time. In June 1978, he complained of sometimes feeling like he was hyperventilating. He was assessed with rule-out hay fever. Post-service treatment records show the Veteran has been diagnosed with anxiety disorder. An August 2011 letter from the Veteran's therapist stated that the Veteran exhibited PTSD symptoms as described in the DSM IV. The Veteran was afforded a VA examination in February 2008. He was diagnosed with anxiety disorder due to a general medical condition such as a closed head injury. The examiner stated that the Veteran's anxiety based condition was not at least as likely as not related to any panic attacks that were incurred from treatment that he received while in service. He stated that the Veteran's breathing difficulties and hyperventilating behaviors appeared to be more likely due to his general medical condition and history of a fall rather than to a specific panic attack syndrome. Upon review of the February 2008 VA examination, the Board finds that the opinion is inadequate for appellate review. The examiner appeared to be relating all of the Veteran's symptoms to a fall that was incurred after service and seemingly ignored that the symptoms had been reported in service before the fall. In his reasoning, the examiner provided no explanation as to why the symptoms reported in service had no relationship to the current diagnosis. Moreover, the examiner did not consider the Veteran's allegations of a sexual assault in service as the same was not revealed at the examination. It is not clear from the examination report as to whether the examiner asked if there was a trauma incurred in service. Finally, since the February 2008 VA examination, there is evidence that the Veteran is experiencing PTSD symptoms despite a lack of an actual diagnosis of the same. To ensure due process, the Board finds that a new examination is needed prior to deciding the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Moreover, while the Veteran's therapist at the Vet Center submitted a letter regarding the Veteran's treatment, the associated treatment records have not been associated with the claim file. These records must be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain and associate with the claim file all of the treatment records from the Vet Center in Detroit, Michigan from February 2011 to the present. All efforts to obtain the records should be clearly documented in the claim file. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. The RO should schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any psychiatric disability the Veteran may currently have, to include anxiety disorder and PTSD. The claim file should be made available to the examiner for their review. All necessary tests should be conducted. The examiner should determine the diagnoses of all current psychiatric disabilities. The examiner should specifically comment as to whether it is as likely as not (i.e., to at least a 50-50 degree of probability) that any currently diagnosed psychiatric disability is related to service or was aggravated by service. The examiner should specifically consider the symptoms reported in service in 1978 including hyperventilating, increased heart rate, dizziness and nausea. The examiner should also consider the Veteran's reports of a sexual assault in service. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer 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. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Then, review the claim folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ LANA K. JENG 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).