Citation Nr: 1332389 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-03 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for PTSD. The issue on appeal has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In this regard, the Board notes that 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 a claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In a June 2011 decision, the Board denied service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the Board's decision to the Court. In a February 2013 Memorandum Decision, the Court vacated the June 2011 decision and remanded the matter to the Board for further proceedings consistent with its decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action, on his part, is required. REMAND In light of points raised in the Memorandum Decision, and review of the claims file, the Board finds that further AOJ action on this matter is warranted. In this case, the Veteran asserts that he has PTSD related to events that occurred in service. Service connection for PTSD 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). During an October 2008 evaluation by a private psychologist (Dr. W.J.A.), the Veteran reported that he came under mortar attacks, small arms fire, and grenades while serving with the 179th Aviation Company outside Pleiku in the Republic of Vietnam. He described and submitted Internet research regarding a mortar attack that occurred in January 1967. The Veteran's service records and a copy of the unit history from the 179th Aviation Company reflect that his reported stressors are consistent with the places, types, and circumstances of his service. As noted in the Board's June 2011 decision, the Veteran's stressors have been conceded. The remaining questions are whether the Veteran has a current diagnosis of PTSD, or other psychiatric disorder, and, if so, whether the psychiatric disorder is related to his in-service stressors. To help answer these questions, the AOJ scheduled the Veteran for a VA examination in May 2009. Unfortunately, as noted by the Court in its Memorandum Decision, the May 2009 VA examination report contains some inconsistencies that render it inadequate. Although the examiner ultimately opined that the Veteran did not meet the criteria for PTSD, earlier in the report, when asked "does the Veteran meet the DSM-IV criteria for a diagnosis of PTSD," the examiner indicated "yes." Furthermore, although the Veteran reported that he had come under mortar attack during service, the examiner indicated that he did not meet the DSM-IV stressor criterion for PTSD, but did not offer an explanation for why this was not the case. The VA examiner also pointed out that there were inconsistencies in the record, noting previous psychological testing that was conducted by Dr. H.R.B. in 1994 (Minnesota Multiphasic Personality Inventory (MMPI)) and by Dr. W.J.A. in 2008 (Personality Assessment Inventory (PAI)). The VA examiner, however, did not conduct any current psychological testing, which may have been helpful in making a determination given the inconsistencies in the record. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the May 2009 VA examination was inadequate, the Board finds that a remand is necessary. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran to undergo VA examination for the purpose of determining the nature and etiology of any acquired psychiatric disorder, to include PTSD. Any indicated diagnostic tests should be conducted, to include a MMPI and PAI, and these tests should be compared to the results noted in 1994 and 2008. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must identify all current psychiatric and personality disorders. The examiner should utilize the DSM-IV in arriving at any diagnoses and should explain whether and how each of the diagnostic criteria is or is not satisfied. If PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. A complete rationale must be given for any opinions expressed and the foundation for all conclusions should be clearly set forth. The examiner is requested to specifically address the following: Is it at least as likely as not (a 50 percent probability or greater) that any current psychiatric disorder manifested during or is otherwise caused by the Veteran's active duty or any incident therein? If so, clearly identify such current psychiatric disorder(s). Note: The VA examiner should consider the Veteran's reports of coming under mortar fire and small arms fire in the Republic of Vietnam consistent with the circumstances of his service. Service records have verified that the Veteran's unit came under mortar fire in January 1967. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The appellant 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 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. 2013). _________________________________________________ K. A. KENNERLY Acting 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) (2013).