Citation Nr: 1332211 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-32 746 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and J.V. ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran had active service from June 1956 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Following the May 2008 rating decision wherein the RO denied service connection for anxiety and depression, the RO separately adjudicated the issue of entitlement to service connection for PTSD in an August 2010 rating decision. However, when the Veteran filed his claim for service connection, he simply identified symptoms of anxiety and depression. The Board must consider all psychiatric diagnoses in such a case and, therefore, the issue on appeal has been restyled to include the diagnosis of PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). In October 2011, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In a February 2012 decision, the Board denied entitlement to service connection for a psychiatric disorder, to include anxiety, depression, schizophrenia, and PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2013 Memorandum decision, the Court vacated the Board's February 2012 decision and remanded the matter for further development and adjudication. The case has been returned to the Board for review. 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. VA will notify the appellant if further action is required. REMAND In the Memorandum decision, the Court determined that the Board failed in its duty to assist by not providing a VA examination with respect to the Veteran's claim for service connection for a psychiatric disorder, to include PTSD. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013). 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, (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) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, id. VA treatment records and private treatment records reflect that the Veteran has a current disability. The records show diagnoses of anxiety disorder, depressive disorder, panic disorder, PTSD, schizophrenia, and personality disorder. With respect to an in-service event, injury, or disease, the Veteran's service treatment records are unavailable. In cases where the veteran's service treatment records are unavailable through no fault of his own, there is a "heightened duty" to assist him in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran stated that he experienced anxiety and depression since active service, his tank training was stressful, and pressure from supervisors made him anxious. The Veteran is competent to testify to his experiences and symptomatology capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With respect to evidence indicating that his claimed disabilities or symptoms may be associated with service, which is a low threshold, the Veteran reported that he experienced anxiety and depression since service and used alcohol to mitigate his symptoms. A November 1973 private record, while dated years after separation from service, reflected treatment for periodic excessive drinking and the psychological testing showed a marked elevation on the depression scale. In light of the above, the Board finds that a VA examination is required to ascertain whether any psychiatric disorder, to include PTSD, is related to active service. As the Veteran's claim is being remanded for further development, the Veteran should be provided another opportunity to describe any in-service stressors. In addition, the Veteran's most recent VA treatment records indicated that the Veteran was scheduled to return for a follow-up appointment. Therefore, updated VA treatment records from Minneapolis VA Medical Center (VAMC) and Tomah VAMC should be obtained and associated with the record. 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 release forms to identify any psychiatric treatment from non-VA providers so that VA may obtain records on his behalf, notice of the amendments to 38 C.F.R. § 3.304(f), effective July 13, 2010, and another PTSD questionnaire to describe any in-service stressors. Allow for an appropriate amount of time for response and complete any additional development resulting from the Veteran's response. 2. Obtain updated VA treatment records from the Minneapolis VAMC (Minneapolis VA Health Care System) to include associated outpatient clinics and community based outpatient clinics, from October 2009 to the present, and obtain updated VA treatment records from the Tomah VAMC, to include associated outpatient clinics and community based outpatient clinics, from February 2009 to the present. 3. Thereafter, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder, to include PTSD. Provide a copy of this remand and the claims file to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a. Does the Veteran have a diagnosis of PTSD? b. If so, is it at least as likely as not (50 percent probability or more) that the Veteran's PTSD is related to a verified in-service stressor. c. Provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any psychiatric disorder demonstrated since service, even if currently resolved, (to include, but not limited to, depressive disorder, anxiety disorder, panic disorder, and schizophrenia) had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. In providing the above opinion regarding whether any psychiatric disorder is related to active service, address the Veteran's assertions that his tank training was stressful and he felt claustrophic; pressure from supervisors to perform during service made him anxious; he experienced anxiety and depression since active service; and he used alcohol as a means to mitigate symptoms of anxiety and depression. Provide a complete rationale for any opinion provided. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted to the fullest extent, the Veteran and his private attorney should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ U.R. POWELL 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).