Citation Nr: 1331541 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 08-03 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depression disorder, schizoaffective disorder, dysthymic disorder and/or posttraumatic disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to May 2005, with four years of prior active service also noted on his DD Form 214. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying service connection for PTSD. Thereafter, the claims files were transferred to the RO in Baltimore, Maryland. In September 2008, the Veteran testified at a Travel Board hearing at the Newark RO before a Veterans Law Judge; the transcript is associated with the record. In July 2013, the Board informed the Veteran that Veterans Law Judge who conducted the hearing was no longer employed by the Board, and indicated that he was entitled to another hearing and advised him that if he did not respond within 30 days the Board would assume he did not wish to testify at a second hearing. Later that month, he responded that he was unable to appear at a hearing and wished for his case to be determined on the evidence already of record. Accordingly, the Board will proceed with the consideration of his case. While the Veteran initially filed a claim for entitlement to service connection for PTSD, evidence of record indicates he has also been diagnosed with depression, dysthymia and schizoaffective disorders. The scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Accordingly, the issue on appeal has been expanded to include psychiatric disorders other than PTSD. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After careful consideration, the Board finds that the claim must be remanded for further evidentiary development. 38 C.F.R. § 19.9 (2012). Available service treatment records show that the Veteran underwent inpatient treatment for diagnosed alcohol dependency in August 1989. A June 1992 polysomnographic evaluation further shows that a Beck Depression Inventory administered at the time suggested mild depression. Treatment records as early as June 2004 indicate ongoing treatment for diagnosed dysthymia and depression. A March 2005 medical history report indicates the Veteran was diagnosed with PTSD in August 2004 and was currently receiving counseling for depression. The report further notes that his PTSD was controlled by Zoloft. The April 2005 separation medical examination report shows that a psychiatric clinical evaluation was normal. Post-service VA treatment records and examination reports show the Veteran has been diagnosed with depression, dysthymia, PTSD and schizoaffective disorder. A February 2006 VA examination report shows a diagnosis of PTSD. The report indicates that the Veteran's stressor was seeing wounded soldiers aboard the USS George Washington and at the Bethesda Naval Hospital. However, in a November 2007 addendum, the VA examiner opined that, although there were suspected symptoms of PTSD, the Veteran's current symptoms appeared to be most likely the result of an exacerbation of the Veteran's diagnosed schizoaffective disorder rather than the result of frank PTSD. Subsequent VA treatment records show continued treatment for diagnosed psychiatric disorders including PTSD, depression, dysthymia and schizoaffective disorder. The November 2007 addendum report noted the Veteran's reported additional stressors of having been part of a search and rescue crew assigned to the search for survivors of a commercial airline crash site at Bahrain International Airport in August 2000 and of being a stretcher bearer aboard the USS George Washington in February 1998 when two Navy jets collided and the pilots were killed. The Veteran also reported providing counseling to first responders to the 9/11 terrorist attacks in New York, while aboard the USNS Comfort hospital ship. In response to VA's attempt to verify the Veteran's stressors, the Center for Unit Records and Research (CURR) verified that two pilots aboard the USS George Washington were killed in an accident on February 6, 1998. However, available personnel records indicate that the Veteran was serving aboard the USS South Carolina at the time of the accident. Although VA has attempted to verify the Veteran's other two reported stressors, there is no evidence of record that CURR has provided any information about whether they can or cannot be verified. Another attempt to verify the Veteran's stressors should be undertaken. 38 C.F.R. § 3.304(f)(2013). The Board notes that there is evidence that the Veteran suffered from depression since his childhood and also reported "hearing voices" since his childhood that suggests he had a psychiatric disorder that pre-existed both his periods of service. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Here, there is no record of an examination at entry into either period of active duty. The statute provides that the presumption of soundness applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition attaches only where there has been an induction examination in which the later-complained-of disability was not detected (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe, 7 Vet. App. 238. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). In the instant case, there are no entrance examinations, so the presumption of soundness does not attach. Therefore, if the Veteran's psychiatric manifestations in service are related to any pre-existing psychiatric disability, a medical opinion must be obtained to determine if the condition increased in severity during service. If such increase occurred, then the presumption of aggravation attaches. In order to rebut this presumption, VA must show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b) (2013). Additionally, the Veteran is currently service-connected for Hepatitis C, and the evidence of record raises an alternative theory of entitlement in support of his claim for service connection for a psychiatric disorder. Service treatment records and post-discharge VA treatment records repeatedly note that depression and anxiety are both side effects of the Veteran's interferon and ribavirin therapy for his service-connected Hepatitis C, raising the issue of entitlement to a psychiatric disorder as secondary to his service-connected disability. 38 C.F.R. § 3.310(a) and (b)(2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA amended its regulation pertaining to secondary service connection, effective October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310 ). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the nonservice-connected condition prior to the aggravation. Generally, when the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies. See Kuzma v. Principi, 341 F.3d 1327, 1329 (Fed. Cir. 2003), see also VAOPGCPREC 7-2003 (Nov. 19, 2003). The Veteran's claim for service connection was received in July 2005, prior to the regulation change. Since the version of 38 C.F.R. § 3.310 in effect at the time the Veteran filed his claim is more favorable, as it did not require a determination of the baseline level of severity of the disability before aggravation can be conceded, the Board will apply the version of the regulation in effect prior to the October 2006 amendments. For the reasons stated above, the Veteran should be provided another VA psychiatric examination to determine what psychiatric disorders he currently has, and their etiology. Barr v. Nicholson, 221 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. VA should provide specific details regarding the Veteran's alleged stressors to the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly CURR) and ask that they take all needed steps to verify them. All actions to obtain the requested verification should be documented fully in the claims file. 2. After the above development has been accomplished, schedule the Veteran for a VA psychiatric examination to determine the current nature and likely etiology of all diagnosed psychiatric disorders found to be present, including depression, dysthymia, PTSD and/or schizoaffective disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All tests deemed necessary must be performed. For each diagnosed psychiatric disorder found to be present, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current psychiatric disorder either had its onset in service or is related to the Veteran's active duty service or any incident therein. If any diagnosed psychiatric disorder is found to have pre-existed the Veteran's military service the examiner must determine if it is at least as likely as not (a 50 percent or greater probability) that the condition increased in severity during service. If such increase occurred, then the examiner must determine if there is clear and unmistakable evidence (obvious or manifest evidence) that any increase in disability was due to the natural progress of the condition. Also, the examiner must also provide an opinion for each currently diagnosed psychiatric disorder as to whether it is at least as likely as not (a 50 percent or greater probability) that it is either caused or aggravated by pharmacological therapy for his service-connected Hepatitis C. In responding to this question, the examiner must address both causation and aggravation or the opinion will be deemed inadequate. If any of the Veteran's stressors are verified, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a diagnosis of PTSD in accordance with the DSM IV criteria. If the examiner determines that the Veteran has a current diagnosis of PTSD, he/she must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's PTSD is due to his verified in-service stressor. Rationale must be provided for all opinions expressed. If an opinion cannot be provided without resort to mere speculation, the examiner must expressly state this and must explain why an opinion cannot be provided without resort to mere speculation. 3. After completing the above, and any other development deemed necessary, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response before the appeal is returned to the Board. The Veteran 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). _________________________________________________ M. N. HYLAND 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).