Citation Nr: 1331608 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 10-08 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to an acquired psychiatric disorder, to include PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Veteran's claims. In June 2010, the Veteran presented testimony at a hearing before RO personnel. A copy of the hearing transcript is associated with the claims folder and has been reviewed. On his VA Form 9 dated January 2010, the Veteran requested a hearing at the RO before a Veterans Law Judge. He cancelled a hearing scheduled for him in November 2011, and the record does not reflect that he has made a further request to reschedule the cancelled hearing. The Board thus finds that the Veteran's hearing request is withdrawn, such that appellate review may proceed. The Board notes that the Veteran filed a claim to reopen his previously denied claim of entitlement to service connection for PTSD with associating disabilities including depression and anxiety. However, the Court of Appeals for Veterans Claims (Court) has held that when a Veteran, who is a lay person, is not competent to diagnose his specific psychiatric disability. Therefore, VA must consider the Veteran's psychiatric symptoms regardless of the label attached to them to warrant service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the issue as above. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issues of entitlement to service connection for an acquired psychiatric disorder and for GERD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed October 2007 rating decision, the RO denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and mood/affective disorder. 2. The evidence received since the October 2007 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The October 2007 rating decision denying service connection for an acquired psychiatric disorder, to include PTSD and mood/affective disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Since the October 2007 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD; therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Implicit in his claim is the contention that new and material evidence which is sufficient to reopen the previously-denied claim has been received. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. The claim on the merits requires additional development, which is addressed in the remand below. Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). For certain chronic disorders, including psychoses, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between the current PTSD symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f); see also Moreau v. Brown, 9 Vet. App. 389 (1996). In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2013). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened. Second, once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The RO initially denied service connection for a nervous condition in a May 1975 rating decision because the evidence both in service and after did not show complaints, treatment, or diagnosis of a chronic nervous condition. Therefore, the RO found that the evidence did not show that a current nervous condition was related to the Veteran's service. The Veteran did not appeal the May 1975 rating decision, and the decision therefore became final. At the time of the prior final rating decision in May 1975, the record included the Veteran's available service treatment records and a VA psychiatric examination dated April 1975. With regard to the Veteran's service treatment records, his service enlistment examination dated September 1965 is absent complaints of or treatment for a psychiatric disorder. A March 1969 mental status examination revealed that the Veteran was tense and anxious who was distraught over a recent car accident sustained by a friend of his. He was petulant, anhedonic, and his attitude of chronic aggrievedness and pathologically dependency was "striking." There was no evidence of severe disabling neurosis or psychosis. A past history revealed acting out behavior, brig sentences and office hours for disciplinary problems. He was diagnosed with passive aggressive personality with multiple paranoid features and chronic hostility. Another March 1969 treatment record noted a diagnosis of passive aggressive personality, although an examination at that time was entirely negative. An impression of possible malingering and passive aggressive obstructive behavior to duty was indicated. In April 1969, the Veteran was hospitalized for three days as he reported being in a state of anxiety which incapacitated him for duty. At that time, he was diagnosed with an anxiety reaction, but was capable of return to duty. A May 1969 treatment record documents the Veteran's complaints of anxiety after allegedly being threatened by one of his sergeants and continued diagnosis of passive aggressive personality as well as paranoid features. In August 1969, the Veteran was admitted to the Naval Hospital at the Marine Barracks in Norfolk, Virginia because of worsening impulse control. Upon mental examination, the Veteran was alert and oriented in all spheres. He was soft spoken and appeared moderately anxious. There was no evidence of thought disorder or significant depression, or evidence of psychosis, neurosis or organic brain dysfunction. His memory was intact, senses were clear and intelligence was average. The Veteran indicated that he had been experiencing tension while on guard duty for the past two years which he attributed to alleged harassment from non-commissioned officers. He also reported that several months ago he went on leave and learned that two close friends had been killed, one of them in Vietnam. He further noted that he had been court-martialed and received a sentence in the brig for misappropriation when, while drunk, he stole a wallet from a lieutenant. Prior to this admission, the Veteran "exploded" at a sergeant who reprimanded him on his appearance. The examiner noted that the Veteran had a tendency to increase his alcoholic intake when under tension, and that he revealed anti-social, acting out behavior. While in the hospital, the Veteran showed no evidence of psychosis. He tended to be manipulative and felt repeatedly that he was being treated unfairly. His service motivation continued to be poor. The examiner continued the diagnosis of passive aggressive personality on the basis of chronic conflict with authority, chronic sense of aggrievedness, anti-social behavior, increased alcoholic intake, anxiety under minimal stress and manipulativeness; external precipitating stress moderate, routine duties of rate plus death of friends; predisposition severe, history of previous anti-social behavior, absence of paternal influence in the home and increased alcoholic intake; impairment marked for military service, minimal for civilian life. The Medical Board opined that the Veteran was unsuitable for further service, and recommended that he be discharged from the Marine Corps. His physical profiled (PUHLES) was evaluated at the "4" level in the "S" or psychiatric condition category. Furthermore, in continuing the diagnosis of passive aggressive personality, the Medical Board opined that the disorder existed prior to entry and was not aggravated by service, and was not due to the Veteran's own misconduct and not incurred in the line of duty. The Veteran's September 1969 separation examination report revealed a normal psychiatric examination. The Veteran was provided a VA psychiatric examination in April 1975. He reported that he was court-martialed on two occasions, on one occasion when he broke four windshields and another when he misappropriated a purse of a lieutenant. He drank heavily at times and was unable to control his temper. After examination of the Veteran, the VA examiner reported that the Veteran was not psychotic in terms of hallucinations and no well organized delusions were revealed but some paranoid coloring was noted. The Veteran also talked in a low monotone and did not express significant mood swings or suicidal trends. No mannerisms were noted or indication that he had no ability to control his temper. Insight was impaired as was his judgment. The examiner diagnosed the Veteran with passive-aggressive personality with some paranoid coloring and noted moderate social and industrial impairment. In a December 1995 rating decision, the RO declined to reopen the Veteran's previously denied claim of service connection for a nervous disorder as the Veteran did not submit new and material evidence as to whether his current disability is related to his military service. Although the Veteran filed a timely notice of disagreement as to the December 1995 rating decision, he did not complete his appeal with the filing of a substantive appeal (VA Form 9 or similar). As such, the December 1995 rating decision became final. At the time of the prior final rating decision in December 1995, the record included VA mental health examinations dated November 1995 which documented a diagnosis of depression and rule out dysthymia. The record also included a private psychological examination by E.V., Psy.D., dated April 1997, who diagnosed the Veteran with dysthymia and rule out generalized anxiety disorder. Dr. E.V. reported that it was not clear whether the Veteran's present difficulties began while he was in service or before. However, Dr. E.V. reported that assuming that the prior diagnoses of passive-aggressive or other personality disorder were and still are correct, it was difficult to imagine that any such disorder was not aggravated within an environment in which command is all-pervasive and subordination utterly required. Additionally, the record included a DRO hearing dated April 1997, wherein the Veteran reported being unfairly treated by one of the guards on duty and being court-martialed for breaking windows with his hands as well as stealing a wallet. In a May 1999 rating decision, the RO declined to reopen the Veteran's previously denied claim of service connection for a nervous condition as the Veteran again did not submit new and material evidence as to whether his current disability is related to his military service. The Veteran appealed this decision to the Board, and the Board denied the Veteran's service connection claim in a January 2001 decision. The Veteran did not appeal the Board's decision, and the decision therefore became final. The Board declined to reopen the Veteran's claim as the Veteran did not submit new and material evidence sufficient to reopen his claim. At the time of the prior Board decision in January 2001, the record included a VA mental health examination dated April 1998. At that time, the Veteran reported that during military service in Norfolk, Virginia in 1969, he witnessed an automobile accident where three people were killed. After examination of the Veteran, the examining psychiatrist diagnosed him with affective disorder, not otherwise specified (NOS), possible PTSD, not clear, and alcohol and cannabis abuse. The Veteran also testified at the Board hearing in March 2000 as to his incidents during service, to include wanting to shoot his lieutenant and sergeant, which he believed caused his current nervous condition. In March 2000, the Veteran filed a claim of entitlement to service connection for PTSD. This claim was denied by the RO in a May 2001 rating decision based on the absence of a diagnosis of PTSD as well as a verifiable in-service stressor. Although the Veteran filed a notice of disagreement to the rating decision, he did not complete his appeal with the filing of a substantive appeal. The May 2001 rating decision therefore became final. At the time of the May 2001 rating decision, the record included VA mental health examinations dated February 1996 to December 1999 which included diagnoses of depression, personality disorder, and rule out PTSD. The record also included the Veteran's report of in-service stressor, specifically referencing the claimed incident in 1969 when he witnessed the automobile accident in Norfolk where three people were killed. In a June 2003 rating decision, the RO denied the Veteran's claim to reopen his previously denied claim of entitlement to service connection for a psychiatric disorder based on the absence of new and material evidence. In essence, the RO found that recently submitted evidence was duplicate evidence that had previously been considered. The Veteran did not appeal this rating decision, and the decision therefore became final. At the time of the June 2003 rating decision, the evidence included a statement by J.S., MSW, dated May 2003. J.S. reported that she had treated the Veteran in August 1999 and March 2003. She believed that the Veteran was traumatized by witnessing the automobile accident and deaths in service and suffered residual effects of depression, anxiety, intrusive thoughts, and nightmares related to this experience. Although he may not meet the guidelines for PTSD, he had symptoms which were related to this experience. In a July 2005 rating decision, the RO declined to reopen the Veteran's previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, based on the absence of new and material evidence. The RO essentially found no indication in the evidence of record that related the Veteran's current mood/affective disorder to service or showed that he had a clinical diagnosis of PTSD. Therefore, service connection remained denied. The Veteran did not appeal the July 2005 rating decision, and the decision therefore became final. At the time of the July 2005 rating decision, the evidence included VA treatment records dated from November 2004 to April 2005 as well as the Veteran's statements relating his current psychiatric disorder to his military service. In an October 2007 rating decision, the RO declined to reopen the Veteran's previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, based on the absence of new and material evidence. The RO found that newly submitted evidence did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. Moreover, the claim continued to be denied in the absence of a diagnosis of PTSD and confirmation of a stressful event in service linked to a diagnosis of PTSD. The Veteran did not appeal the October 2007 rating decision, and the decision therefore became final. At the time of the October 2007 rating decision, the evidence of record included a VA mental health evaluation dated December 2001 which documented the Veteran's continued report of the claimed in-service incident which he stated occurred in 1968 when he witnessed the automobile accident in Norfolk. After examination of the Veteran, the examining psychiatrist diagnosed the Veteran with alcohol abuse in full sustained remission as well as mood disorder, NOS, in remission. The record also included a report from the RO indicating that an attempt was made to verify the Veteran's stressor with the Virginia State Police. However, the Virginia State Police did not keep accident reports dating back to 1968. As the October 2007 decision is final, new and material evidence is therefore required to reopen the claim. Specifically, in order to reopen, the evidence must show that the Veteran has an acquired psychiatric disorder that is related to his military service or a diagnosis of PTSD that is related to an in-service stressor. In reviewing the evidence added to the claims folder since the October 2007 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claim. Specifically, the medical evidence of record associated with his claims folder after the October 2007 rating decision documents diagnoses of a psychiatric disorder, specifically depressive disorder, that is related to the Veteran's military service. Moreover, the evidence submitted after the October 2007 rating decision documents a diagnosis of PTSD related to an in-service stressor. See a private treatment record from J.A., M.A., dated June 2010. The Board finds that, assuming its credibility, the newly submitted evidence is material. In particular, the evidence now includes a current diagnosis of PTSD related to an in-service stressor. This piece is crucial to establishing the elements of service connection for PTSD. The evidence also now includes an indication that the Veteran has a diagnosed psychiatric disorder related to his military service. This piece, too, was missing at the time of the last final denial. As the previously missing elements of service connection are now of record, the Board finds that the evidence is new and material sufficient to reopen the claim. As was indicated in the above VCAA discussion, VA's statutory duty to assist the Veteran in the development of his claim attaches at this juncture. For the reasons explained in the remand section below, the Board finds that additional development is necessary before a decision on the merits of the reopened claim may be rendered. In addition, the standard of review changes at this point. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and, therefore, the probative value of proferred evidence in the context of the record as a whole. The Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Although the evidence discussed above is adequate for the limited purpose of reopening the claim, this does not necessarily make it sufficient to allow the grant of the benefit sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) [material evidence is evidence that would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim]. The Board finds that additional evidentiary development is required. This will be discussed in the remand section which follows. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened; to this extent only, the appeal is granted. REMAND Service connection for an acquired psychiatric disorder, to include PTSD The Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board notes that the current medical evidence of record documents a diagnosis of depressive disorder, NOS. See a private treatment record from J.A., M.A., dated June 2010. As discussed above, with regard to the Veteran's service treatment records, his service enlistment examination dated September 1965 is absent complaints of or treatment for a psychiatric disorder. However, he was diagnosed with an anxiety reaction in April 1969. Moreover, treatment records dated March to August 1969 document diagnoses of passive aggressive personality with multiple paranoid features and chronic hostility. With respect to the latter diagnosis, the Board notes that personality disorder is not a disease or injury under VA regulations and therefore not a disability for which service connection can be granted. 38 C.F.R. § 3.303(c) (2013). Nevertheless, service connection may be awarded based upon probative evidence showing that depressive disorder, or another psychiatric disorder, was incurred or aggravated in service or superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2013); Carpenter v. Brown, 8 Vet. App, 240 (1995); Beno v. Principi, 3 Vet. App. 439 (1992). Furthermore, the Veteran contends that his current acquired psychiatric disorder is related to his military service. He has further contended that he has continued to experience psychiatric symptoms since then. On this evidence, the Board finds that there is evidence of a current disability, an in-service disease, and evidence that the two may be connected. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's current acquired psychiatric disorder and his service is warranted. Additionally, because the Veteran has been assessed with a personality disorder, the examiner should also comment on whether any diagnosed acquired psychiatric disorder was superimposed on that in-service personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2013); Carpenter v. Brown, 8 Vet. App. 240 (1995); Beno v. Principi, 3 Vet. App. 439 (1992). As discussed above, in order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between the current PTSD symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). During the pendency of this appeal, a new version of 38 C.F.R. § 3.304 was promulgated. See 75 Fed. Reg. 39843 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Because the Veteran's PTSD claim was appealed to the Board before July 13, 2010 and is being decided thereafter, the updated version of the law is applicable. In this case, the Veteran has not been advised of the new version of 38 C.F.R. § 3.304(f). On remand, he should be so notified. The Veteran contends that he has PTSD due to witnessing an automobile accident in November 1968 during service in Norfolk, Virginia that resulted the deaths of three people. See, e.g., the June 2010 DRO hearing, pgs. 4-6. He has also stated that he has PTSD due to service in Guantanamo Bay between November to December 1965. Specifically, he has stated that he witnessed the deaths of Cubans from land mines while working as a sentry. See a private treatment record from R.B., D.O., dated July 2008. He has also stated that he was at one point ready to fire shots at Cuban soldiers but did not. See the June 2010 DRO hearing, page 9. The Board notes that the Veteran's personnel records verify service in Norfolk as well as Guantanamo Bay during periods in which the his alleged stressors occurred. The Veteran's claimed stressors have not been submitted to the United States Army and Joint Services Records Research Center (JSRRC) [formerly the United States Armed Service Center for Unit Records Research (CURR)] by the RO. However, the Board finds that the Veteran has provided sufficient information regarding the timeframe in which the stressors occurred. Therefore, the Board finds that a remand is necessary in order to attempt verification of the reported stressors. Further, if either stressor claimed by the Veteran is verified, a VA examination should be scheduled in order to ascertain whether the Veteran's claimed PTSD is a result of a verified in-service stressor. Service connection for GERD The claim of entitlement to service connection for GERD, claimed as secondary to an acquired psychiatric disorder, to include PTSD, is inextricably intertwined with the claim of entitlement to service connection for an acquired psychiatric disorder. In other words, development of the Veteran's service connection claim for an acquired psychiatric disorder may impact his GERD claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. As discussed above, the Board finds that a VA examination is warranted for the Veteran's acquired psychiatric disorder claim. If the VA examiner finds that the Veteran's diagnosed acquired psychiatric disorder is related to his military service, or alternatively if he has PTSD which is related to a verified military stressor, an opinion should also be obtained as to whether he has GERD which is caused or aggravated by the psychiatric disorder. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of the changes to 38 C.F.R. § 3.304(f), to include establishing service connection based on fear of hostile military activity and on personal assault. See 75 Fed. Reg. 39843 (July 13, 2010). A copy of the letter shall be documented in the claims file. 2. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claims remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the above development has been completed, review the file and prepare a summary of the Veteran's claimed stressors, to include the Veteran's report of witnessing an automobile accident in November 1968 in Norfolk, Virginia that resulted in the deaths of three people, as well as his report of witnessing the deaths of Cubans between November and December 1965 during service at Guantanamo Bay. This summary, together with a copy of the Veteran's DD Form 214 and any other documents the RO deems to be relevant, should be sent to the U.S. Army & Joint Services Records Research Center (JSRRC). That agency should be asked to provide any information that might corroborate the Veteran's alleged stressors. 4. The Veteran should thereafter be afforded an appropriate VA examination to determine the nature and etiology of his acquired psychiatric disorder, to include depressive disorder. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a) Identify any current acquired psychiatric disorder. b) For each acquired psychiatric disorder identified, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's psychiatric disorder is related to his military service, to include treatment for and diagnosis of anxiety reaction in April 1969. If, and only if, either the Veteran's claimed stressors of witnessing the deaths of three people during service in Norfolk, Virginia in November 1968 from an automobile accident or his witnessing of the deaths of Cubans due to land mines during service in Guantanamo Bay from November to December 1965 is verified, also provide an opinion as to whether the Veteran's acquired psychiatric disorder is related to either of these incidents. c) Noting the Veteran's prior in-service diagnosis of a personality disorder, comment on whether he had a separate psychiatric disorder, to include depressive disorder, which was superimposed on that personality disorder during active service. d) If, and only if, it is determined that the Veteran has PTSD, and if either of his claimed stressors of witnessing the deaths of three people during service in Norfolk, Virginia in November 1968 from an automobile accident or his witnessing of the deaths of Cubans due to land mines during service in Guantanamo Bay from November to December 1965 is verified, state whether it is at least as likely as not (e.g., a 50/50 probability) that his PTSD is a result of his claimed in-service stressors. e) If, and only if, it is determined that the Veteran has an acquired psychiatric disorder, to include PTSD, related to his military service, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran suffers from GERD that is either (1) caused by, or (2) aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected psychiatric disorder. If the examiner finds that the GERD is aggravated by the service-connected psychiatric disorder, then he/she should quantify the degree of aggravation. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs