Citation Nr: 1332055 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-31 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to April 1976, and had additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied the Veteran's request to reopen his claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and a nervous disorder. The Board reopened and remanded the claim of entitlement to service connection for a psychiatric disability in June 2013. In May 2013, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In June 2013, the Board remanded the Veteran's claim of entitlement to service connection for a psychiatric disability in order to obtain additional pertinent evidence and afford the Veteran an appropriate VA examination. The record reflects that multiple correspondences from the RO to the Veteran-including June 2013 and September 2013 mailings-were returned to sender by the Post Office, which found that they were undeliverable because they contained an incorrect mailing address. In September 2013, the Veteran informed VA that the letters instructing him to appear at his VA examination were mailed to the wrong address. The Veteran included his current address in his September 2013 letter, and his representative now asks that his VA examination be rescheduled. The Board finds that the Veteran's statement that he did not receive VA's letters is supported by the evidence of undeliverable mail, and that his examination should be rescheduled. For the convenience of the VA examiner and the Veteran, the pertinent summary of facts and law from the Board's June 2013 remand is reprinted below: The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). At his May 2005 DRO hearing, the Veteran testified that his psychiatric disorder began "right after boot camp." The Veteran also reported that he received seven Article 15s during service and that his behavior began to deteriorate while he was on active duty. At his May 2013 travel board hearing, the Veteran testified that his psychiatric condition began to deteriorate around 1975, during his service. See transcript, p. 2. He reported that his unit got tired of waiting to see "action" and "it got so bad [that] we started trying to kill each other." Id., p. 3. The Veteran also reported being scared of the "black planes, black ships, [and] black subs [with] no markings" that he reportedly saw in service. He further reported "[p]utting chemicals away in the middle of the night," and experiencing "just a lot of weird stuff" in service. Id., p. 3. The Veteran testified that "I had sliced my wrists in a bathroom stall in one of the barracks." Id., p. 4. He also reported having "tried to shoot another marine who stole my pillow." Id., p. 4. The Veteran stated that after service, "I almost bit a man to death." Id., p. 6. He testified that he now only talks with his children and grandchildren. Id., p. 7. The service treatment records include a November 1978 Report of Medical Examination in which a clinician found that the Veteran psychiatrically normal, and a November 1978 Report of Medical History in which he denied having depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort, but did endorse having frequent trouble sleeping and periods of unconsciousness. His service personnel records also include seven offenses and punishments. Based on a thorough review of the record, the Board finds that a mental health examination and etiological opinion are required for two reasons. First, an examination and etiological opinion are required because it is unclear to the Board whether the inconsistencies between the Veteran's statements and his military record derive from misperceptions attributable to his psychiatric disorder. For example, in an April 1997 NCCMHC record, the Veteran reported that he began having mental health problems during his military service doing recognizance in Vietnam. Additionally, in a November 2006 private treatment record, L. Ruoff, MD, noted the Veteran's reported status as a Vietnam combat veteran and diagnosed him with bipolar disorder, polysubstance dependence, and a history of PTSD and panic attacks. Similarly, in a December 2008 NCCMHC record, the Veteran reported using substances to self-medicate for his flashbacks and nightmares resulting from the trauma of being in Vietnam. Likewise, in an April 2013 NCCMHC record, the Veteran was found to "get very upset talking about war experiences and trying to get VA benefits." However, his official DD Form 214 shows that he had no overseas service, and an August 2010 Formal Finding by the RO reflects that his service personnel records are negative for any evidence of combat awards, decorations, or evidence of direct participation in combat. Relatedly, in May 2008, the Veteran's treating VA psychologist characterized the Veteran as uncooperative and unreliable, providing vague answers to questions and contradictory information about his heroin use. In an October 2008 VA treatment record, his treating psychologist noted that the Veteran was reportedly in trouble for forging his military papers to get into a housing project. Second, a mental health examination and etiological opinion are needed in light of Public Law 112-154, the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, which provides that a veteran who served on active duty in the Armed Forces at Camp Lejeune, North Carolina, for not fewer than 30 days during the period beginning on January 1, 1957, and ending on December 31, 1987, is eligible for hospital care and medical services for "neurobehavioral effects" due to contaminated water there. As noted above, in a December 2012 letter, NCCHMC Dr. Klein stated that "I am unable to say with medical certainty how much [the Veteran's] military experiences and the water contamination at Camp Lejeune affected him because I did not know him before he joined the military." On remand, the VA examiner should provide an opinion as to whether it is at least as likely as not that any of the Veteran's psychiatric disorders are related to or had their onset in service. In making a determination, the examiner should consider the lay statements of record, including the competent January 1999 statements from the Veteran's family; the medical evidence of record, including the July 1987 and April 1998 VA examination reports; and any relevant studies relating to the effects of water contamination at Camp Lejeune. On remand, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should contact the Veteran at the mailing address that he listed in his September 2013 letter to VA, or any subsequent address that he provides, and ask that he identify any outstanding VA and non-VA records pertaining to his psychiatric disabilities that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements of the nature and onset of his psychiatric symptoms from himself as well as from other individuals who have first-hand knowledge of such symptoms, to include whether the onset of the symptoms was during service. He should be provided an appropriate amount of time to submit this lay evidence. 3. After associating all outstanding records regarding the Veteran's psychiatric disorder(s) with the claims folder, afford the Veteran an appropriate VA examination. The examiner must identify all psychiatric disabilities found to be present. Thereafter, the examiner must opine as to whether it is at least as likely as not that the Veteran has a psychiatric disability that is related to or had its onset in service, and if a psychotic disorder is diagnosed, whether it developed within one year of his discharge. In responding to this question, the examiner must acknowledge and discuss the competent January 1999 lay statements offered by the Veteran's mother and father. The examiner must also discuss whether it is at least as likely as not that the Veteran's psychiatric disability is related to exposure to contaminated water at Camp Lejeune. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide statement as to whether there is any 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. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ STEVEN D. REISS 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).