Citation Nr: 1331867 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-14 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, posttraumatic stress disorder (PTSD), and depression. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force from June 1983 to June 1987. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim of entitlement to service connection for bipolar disorder. In an October 2010 rating decision, the RO also denied claims for service connection for PTSD and depression secondary to bipolar disorder. The United States Court of Appeals for Veterans Claims (Court) has held that a veteran, who is a lay person, is not competent to diagnose his specific psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, VA must consider whether the Veteran's psychiatric symptoms regardless of the label attached to them warrant service connection. Id. The evidence of record reflects that the Veteran has been diagnosed with various psychiatric disorders. Accordingly, the Board has recharacterized the issue as service connection for an acquired psychiatric disorder, to include bipolar disorder, PTSD, and depression. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision. The appeal is REMANDED to the Waco RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends he developed an acquired psychiatric disorder to include bipolar disorder, PTSD, and depression, as a result of his service with the United States Air Force. In order to establish service connection for an acquired psychiatric disorder, except for PTSD, there must be (1) medical 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). Applicable regulations provide that service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). The Veteran has specifically detailed several in-service stressors to which he attributes his PTSD and bipolar disorder. His alleged in-service stressors include watching a fellow serviceman commit suicide, and cleaning up bodies after a May 1987 plane crash on Carswell AFB. Under 38 C.F.R. § 3.3.04(f)(1), the claimed stressors must be consistent with the circumstances, conditions, or hardships of the Veteran's service. Although in August 2010 the RO made a finding that there was sufficient information required to corroborate both stressors, the Board does not find this corroboration to be sufficient. Although the Board acknowledges the Veteran's contentions that he witnessed a plane crash on Carswell AFB, according to his personnel records, while the Veteran at one point served as an aerospace security sentry at Carswell AFB, the Veteran was in fact stationed at Hahn AFB in Germany at that time the plane crash occured. On remand, the Veteran should be asked to again provide additional evidence to substantiate his claimed stressors, specifically his presence during the plane crash at Carswell and the suicide of the serviceman named on his VA Form 9. See Patton v. West, 12 Vet. App. 272 (1999) (noting that in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it may be required that VA develop alternative sources of information). The Veteran should be notified of the possible alternative sources for verifying the claimed in-service stressors. These sources could include, but are not limited to: VA military files, morning reports, statements from service medical personnel, buddy statements, employment physical examination reports, medical evidence from civilian/private medical providers by whom the Veteran was treated, pharmacy prescription records, etc. Thereafter, the RO should verify the above described events through a request to the United States Army and Joint Service Records Research Center (JSRRC) or any other appropriate agency. Also, the record reflects that the Veteran received treatment for depression related to the death of his father in 1997 from the VA Medical Center (VAMC) in Eerie, Pennsylvania. As this matter is being returned for additional development, these outstanding medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (finding that VA medical records are in constructive possession of the agency and must be obtained if pertinent). The VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). Here, the Veteran has been diagnosed with bipolar disorder with psychotic features, but he has not been diagnosed with PTSD or depression, although he contends he has symptoms of such, and that they are related to in-service events. The Veteran was also seen at a mental health clinic twice during service and contends he was subject to two in-service stressful events. The Veteran has not yet attended a VA examination to determine the nature and etiology of any of his current psychiatric disorders; and he must be provided such an examination on remand. See id.; see also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (holding that under § 3.304(f)(5), "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated"). Therefore, the duty to provide an examination under McLendon has been triggered. The Board notes that the Veteran was scheduled for a VA examination in September 2010, but failed to report for that examination. There is indication that the Veteran is homeless, and no indication that he was advised of the consequences for failure to report for a VA examination without good cause. 38 C.F.R. §§ 3.158, 3.655 (2013). It is the Veteran's responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. In the instant case, since the Veteran is homeless and was not advised of the consequences of his failure to report to a VA examination, the Board finds it prudent and consistent with VA's duty to assist to afford him another opportunity to attend an examination. Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran that he may submit alternative forms of evidence (evidence other than service records) to corroborate his account of the alleged in-service stressors. He should be informed that these alternative sources could include, but are not limited to: VA military files, morning reports, statements from service medical personnel, buddy statements, employment physical examination reports, medical evidence from civilian/private medical providers by whom the Veteran was treated, pharmacy prescription records, etc. 2. With the information obtained from the Veteran regarding his stressors, attempt to verify any of the Veteran's claimed stressors, specifically to include the plane crash at Carswell AFB and the suicide of the serviceman whom the Veteran named on his VA Form 9, with JSRRC or any other appropriate agency. JSRRC or the agency should be requested to conduct a search of all of the available and appropriate sources, and provide any pertinent information which might corroborate any of the claimed stressors. Any information obtained should be associated with the claims file. If the search efforts produce negative results, the claims file should be so documented. 3. Obtain all outstanding VA treatment records, specifically to include the Veteran's 1997 Eerie, Pennsylvania VAMC treatment records. All efforts to obtain the additional evidence must be documented in the paper and/or electronic claims files. If the search for such records has negative results, documentation to that effect should be included in the claims files. 4. Thereafter, schedule the Veteran for a psychiatric examination to ascertain the nature and etiology of any current psychiatric disorder. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner(s) should: a. Elicit a complete history from the Veteran, including more detailed information regarding his two mental health clinic visits during service. b. Based on examination findings, historical records, and medical principles, the examiner must give a medical opinion, with full rationale, as to whether the Veteran currently has PTSD under the Diagnostic and Statistical Manual (DSM). c. If a diagnosis of PTSD is deemed appropriate, the examiner should opine whether it is as likely as not (a 50 percent or greater probability) that any stressors that have been corroborated would have been adequate to trigger the PTSD. d. Identify any other current acquired psychiatric disorder. e. For any other psychiatric disorder or disorders diagnosed, the examiner should opine whether it is as likely as not (a 50 percent or greater probability) that the the Veteran's psychiatric disability is related to service, including the noted in-service stressors. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer 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. 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. Notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 6. Thereafter, readjudicate the Veteran's claim. If the 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. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MICHAEL A. PAPPAS 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).