Citation Nr: 1332487 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-30 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from July 1979 to January 1990, with service in Korea from July 1981 to July 1982, and from October 1984 to October 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed a claim for service connection for PTSD. The November 2007 rating decision on appeal denied service connection for only PTSD. During the appeal, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a service connection claim for a specific psychiatric entity encompasses all psychiatric diagnoses shown by the record. The issue is characterized to comply with Clemons. 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 While the Board regrets any additional delay in the adjudication of the Veteran's claim, the Board finds that his appeal must be remanded for additional development. In September 2013 correspondence from the Veteran's representative, it was argued that the Veteran's service treatment records were incomplete. Specifically, review of the evidence reveals that a final separation examination report is not associated with the claims file. Such evidence would be pertinent, and perhaps critical, to the Veteran's claim for service connection for a psychiatric disability as he alleges his symptomatology began after his service in Korea. Moreover, a review of the claims file found that exhaustive development for all service treatment records has not been sought. Given the critical nature of any such records, further development to secure them is necessary. In addition, the Veteran filed a claim for service connection for PTSD, and the adjudication of the claim by the RO was limited to the entity of PTSD. Such adjudication has been overtaken by intervening case law in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (discussed above). The record reflects diagnoses of psychiatric disabilities other than PTSD, including, but not limited to, depressive disorder, major depressive disorder, and impulse control disorder. Hence, this matter must be remanded for RO initial consideration of the expanded issue of service connection for a psychiatric disability, however diagnosed. The Veteran was afforded a VA mental disorder examination in February 2007. On examination, the Veteran reported he witnessed four enemy soldiers being shot and killed and that this has never bothered him, which the examiner indicated, was inconsistent with his report of flashbacks and nightmares. While the examiner noted that the Veteran contradicted himself during the examination and there were credibility issues, resolving the benefit of the doubt in the Veteran's favor, the examiner diagnosed the Veteran with mild PTSD, major depressive disorder, and impulse control disorder. Significantly, no nexus opinion was provided. In an August 2007 PTSD stressor statement, the Veteran stated that he feared for his life every day while stationed in Korea in the demilitarized zone (DMZ), and related his current psychiatric symptomatology to his service in Korea. In this regard, the Board observes that in September 2013 written argument, the Veteran's representative points out that the Veteran served two tours with the 2nd Infantry Division, and that while serving in Korea, an American was killed on the DMZ on November 23, 1984, while the veteran on the DMZ. While otherwise correct, the Board's review, however, shows that a serviceman was shot and wounded in the jaw. See http://www.imjinscout.com/DMZ_History2.html. In that written argument, The American Legion also reports that prior to the Veteran's first tour one soldier was killed and four wounded in December 1979. See http://en.wikipedia.org/wiki/List_of_border_incidents_involving_North_Korea#1980s . As such, his representative maintains that the Veteran had a legitimate fear of enemy activity and enemy infiltration and that there were tunnels into American lines. VA treatment records also include inconsistent reports of being involved in combat, being a sniper in Korea, and inconsistent allegations of shooting a North Korean who shot one of his men. Cf. January 2008 Alexandria VA Medical Center psychology consult report wherein the Veteran stated that "he never shot at a North Korean." The Board notes that there has been a significant change in the law regarding PTSD claims during the pendency of this case that has not been previously addressed. Effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor. See 75 Fed. Reg. 39,843 (July 13, 2010); see also 74 Fed. Reg. 41,092 (July 15, 2010) (correcting the effective and applicability dates). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." As the Veteran's claim was appealed to the Board before July 13, 2010, but had not been decided by the Board as of July 13, 2010, the amended regulations apply to the instant claim for service connection for a variously diagnosed psychiatric disability. However, a review of the record does not reflect the Veteran was provided with notification regarding what was necessary to support a claim of service connection for PTSD based upon "fear of hostile military or terrorist activity." Moreover, such basis for entitlement to service connection was not addressed in the prior VA examination. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligation to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). As this matter is being remanded anyway, he should be provided corrective notice and a new examination with consideration of the appeal under the liberalized regulations. As to the Veteran's TDIU claim, in June 2013 correspondence, the Veteran appears to raise the issue of entitlement to service connection for upper and lower back disabilities. In addition, in September 2013 correspondence, the Veteran's representative appears to raise the issues of service connection for heart disease and hypertension. Not surprisingly, these issues have not been considered by the RO. Although generally the Board would refer these issues to the RO, here the adjudication of these claims may impact the Board's consideration of the Veteran's TDIU claim. Similarly, his TDIU claim is inextricably intertwined with his psychiatric disability claim that is discussed above. As such, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the raised and perfected service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As a final matter, the Board notes that the Veteran appears to have suffered an injury to the left lower extremity in 2002 that required open reduction and internal fixation. The operative report is not associated with the claims file and such should be secured on remand. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish service connection for PTSD based upon fear of hostile military or terrorist activity pursuant to the revised regulatory provisions of 38 C.F.R. § 3.304(f)(3). The letter should also provide the Veteran with the appropriate notice for his raised claims of service connection for upper and lower back disabilities, heart disease and for hypertension. The letter should include all VCAA-mandated notice applicable to claims for a variously diagnosed psychiatric disability, to include PTSD. The letter should also request that the Veteran provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to his claims on appeal that are not otherwise of record, to specifically include identifying the location and date of the open reduction and internal fixation of the left lower extremity. After securing the necessary authorizations for release of this information, the RO should undertake appropriate efforts to attempt to obtain any identified records. The RO must make at least two requests to any custodian of private records, if relevant, in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. All development efforts should be associated with the claims file. He should be afforded the opportunity to respond. 2. The RO should arrange for exhaustive development to secure complete service treatment records. If no further records are located, it should be so noted in the record, along with a description of the scope of the search, and the Veteran should be so notified. 3. The RO should obtain for association with the claims file updated (since June 2009) records of any VA evaluation or treatment the Veteran may have received for psychiatric disability, low back disability, upper back disability, heart disease and hypertension. 4. Schedule the Veteran for an appropriate VA examination to determine the nature, onset and etiology of any upper back disability, low back disability, heart disability and hypertension found to be present. The claims folder should be made available to the examiner and all appropriate tests should be conducted. Thereafter, the examiner should diagnose any upper back (and neck disability), low back disability, heart disability and hypertension found to be present and opine as to whether it is at least as likely as not that any of the disabilities is related to or had its onset in service or developed within the first year after his discharge from active duty. The examiner must also opine as to whether it is at least as likely as not that any upper back (and neck disability), low back disability, heart disability and hypertension found to be present was caused by, or aggravated by, his service-connected disability, to include the aggregate impact of those conditions. All findings and conclusions should be set forth in a legible report. 5. After the Veteran has been afforded a reasonable period of time to submit additional evidence and/or argument in regard to the revised regulatory provisions of 38 C.F.R. § 3.304(f)(3) for claims for PTSD based upon fear of hostile military or terrorist activity, he should be afforded an examination with a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, to determine the nature of any psychiatric disability the Veteran may have, to include PTSD. The claims file should be made available to, and reviewed by, the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. The examiner should take a detailed history from the Veteran and acknowledge and discuss his competent report as to the onset of his psychiatric symptoms. The examiner must opine as to whether it is at least as likely as not that he has a psychiatric disability that began during service or is related to any incident of service, to specifically include his service in Korea, and to include "fear of hostile military or terrorist activity" as defined by the revised provisions of 38 C.F.R. § 3.304(f)(3). A diagnosis of PTSD must be ruled in or excluded. The examiner is requested to provide a complete rationale for his or her opinions, which must be set forth in a legible report. 6. Then adjudicate the Veteran's raised claims of service connection for any upper back disability, low back disability, heart disability and hypertension and then readjudicate his perfected claims of service connection for psychiatric disability, to include PTSD, and to a TDIU. In readjudicating the Veteran's psychiatric disability claim, the RO must specifically consider the applicability of 38 C.F.R. § 3.304(f)(3). If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ 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).