Citation Nr: 1332157 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-05 067 ) 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, including posttraumatic stress disorder (PTSD), to include as secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to August 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to service connection for PTSD. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. 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 The Veteran seeks service connection for PTSD. The Veteran's DD Form 214 shows that he earned the Combat Infantryman Badge, and the file contains a service personnel record revealing that the Veteran had "duty in imminent danger pay area," in Panama from December 20, 1989 to January 31, 1990. The Veteran reports that while serving in Panama, in February 1990, three helicopters were shot down during a combat mission and eight soldiers from his Company were killed. The Veteran further noted that one of the deceased soldiers was his roommate, and he was one of the soldiers for whom they searched for three days. When he found them, their body parts were everywhere, including exposed insides that had been burned. Service treatment records show that the Veteran was serving in Panama in February 1991. The service treatment records (STRs) show that the Veteran was discharged due to misconduct for testing positive for THC (marijuana). A Report of Mental Status Evaluation was normal and the Veteran was "psychiatrically cleared for separation." VA outpatient treatment records from May 2010 reveal a positive PTSD screen; however, a November 2010 VA examination report includes diagnoses of polysubstance dependence, alcohol dependence, an alcohol induced mood disorder, Cannabis induced anxiety, and a pain disorder associated with both psychiatric factors and a general medical condition. The examiner also found that the Veteran had a personality disorder, not otherwise specified (NOS). In the Veteran's notice of disagreement, he asserted that he meets the clinical diagnosis of PTSD according to VA Medical Center (VAMC) treatment records in May 2010. The Veteran reported that he spent 45 days in recovery in 1998 for depression and substance abuse. The RO obtained outpatient treatment records from the Overton (Shreveport) VAMC from May 2010; however, it appears that there may be additional records that have not yet been obtained, given that the Veteran reported treatment as an inpatient in 1998 and continued PTSD treatment and treatment for substance abuse over the years. On the Veteran's February 2012 VA Form 9, substantive appeal to the Board, he reiterated that the VA hospital in Shreveport refuses to treat him for PTSD due to his substance abuse; however, he asserts that his substance abuse is to help with his PTSD symptoms. In August 2013, the Board received evidence that the Veteran entered a PTSD program at the RO in North Little Rock, Arkansas. In a February 2013 memorandum, the Admissions Coordinator of the PTSD Domiciliary Program verified that the Veteran was admitted to the Arkansas Veterans Healthcare System's PTSD Domiciliary program for the treatment of PTSD on January 23, 2013 and was expected to be discharged from the program in March 2013. In another memorandum prepared in February 2013, the Veteran's primary social worker during the course of PTSD domiciliary care reported that the Veteran has been diagnosed with PTSD and has been receiving mental health treatment for this disorder since 2011. Based on the foregoing evidence, which shows that the Veteran is receiving treatment for PTSD, the Veteran should be re-examined to determine whether his PTSD is due to his in-service stressor. In this case, the Veteran's DD Form 214 confirms that the Veteran earned a Combat Infantryman Badge (CIB), presumably for his service in Operation Just Cause in Panama. Thus, it is clear that the circumstances of the Veteran's service would have exposed him to combat and his stressor is therefore conceded. However, with respect to the nexus element, there is conflicting evidence as to whether the Veteran has a diagnosis of PTSD, and if so, whether any diagnosed PTSD is due to the in-service stressor. The VA examiner found no diagnosis of PTSD, but the Veteran's VA outpatient records from the VAMC in Shreveport from 2012, located in the Veteran's Virtual VA file, show a diagnosis of PTSD, as well as a depressive disorder NOS. Upon further review of the VA outpatient records, it appears that the Veteran was discharged from an out of state PTSD facility "non-VA hospital" on February 11, 2013. A VA outpatient noted dated February 21, 2013 shows that the Veteran reported to the examiner that he would be going into an inpatient PTSD unit in Little Rock on March 19th. Unfortunately, there has been no attempt to obtain the clinical records from the North Little Rock PTSD domiciliary facility. These records are potentially relevant to the Veteran's claim because they may provide the requisite nexus between the Veteran's in-service stressor and his current diagnosis of PTSD. Furthermore, the VA outpatient records show that the Veteran has other diagnosed psychiatric disorders, but there is no opinion of record as to whether any such disorder(s) are linked to service or the service-connected right knee disorder. The United States Court of Appeals for Veterans Claims (Court) has held that 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). Therefore, it is acknowledged that such a claim of entitlement to service connection for PTSD, in this case, includes a claim of service connection for all currently diagnosed acquired psychiatric disorders. In addition, as the service personnel records may include additional information pertinent to his claim, such should be obtained. 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. Provide the Veteran with notice as to how to substantiate his claim for service connection for a psychiatric disorder as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.159. 2. Obtain the Veteran's complete official military personnel file. 3. With appropriate authorization from the Veteran, obtain and associate with the claims file any private treatment records that are pertinent to the claim(s) on appeal. The Veteran should be asked to identify the non-VA hospital at which he was hospitalized in February 2013 as well as any providers (VA and non-VA) who treated him for psychiatric disorders since his discharge from service. 4. Obtain and associate with the claims file or the VVA file VA treatment records as follows: a. records pertaining to inpatient treatment in 1998 at a Georgia VA medical facility; b. records dating from 2010 that are not already of record, including those generated since January 2013 which pertain, but are not limited to, all clinical records from the Veteran's participation at the North Little Rock PTSD Domiciliary Program beginning in January 2013 and again in March 2013; and c. any additional VA records identified by the Veteran in response to Step 1. 5. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 6. After completion of the above, schedule the Veteran for a VA psychiatric examination to determine the current nature and likely etiology of any current psychiatric disorder, including, but not limited to PTSD, depression, a pain disorder associated with both psychological factors and a general medical condition, and a substance abuse disorder claimed as secondary to PTSD. The claims folder must be made available to and reviewed by the examiner, who must indicate on the examination report that such a review was undertaken. The examiner should consider the diagnoses provided by VA outpatient and inpatient mental health providers, and reconcile these diagnoses with the November 2010 VA examiner's opinion finding that the Veteran's psychiatric testing produced invalid results and therefore that examiner was unable to diagnose PTSD. The examiner should be aware that the Veteran's in-service combat stressor has been conceded. The VA examiner should opine as to why he or she agrees or disagrees with the VA clinical findings of a diagnosis of PTSD and depression; and, provide a rationale for the opinions expressed. The examiner should provide an opinion as to whether it is as least as likely as not that (i.e., probability of 50 percent or greater) that the Veteran has an acquired psychiatric disorder that is related to service, to include whether the Veteran's PTSD diagnoses are due to the in-service stressor, and whether the Veteran's substance abuse and alcohol dependence is secondary to, or made permanently worse by, any service-connected psychiatric disorder(s). It is also requested that the examiner opine as to whether it is at least as likely as not that the pain disorder diagnosed in November 2010 is due to or aggravated (i.e., worsened) beyond the natural progress by the service-connected right knee disorder. A complete rational must be provided for all opinions rendered. 7. When the above has been accomplished, ensure that all of the remand instructions have been complied with. If any of the actions are deficient in any manner, the AMC/RO must implement corrective procedures at once. 8. Readjudicate the claim on appeal. If the benefit sought is not granted, the Veteran should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). _________________________________________________ S. S. TOTH 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).