Citation Nr: 1332513 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-42 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from October 1975 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied service connection for PTSD. The record indicates that the Veteran has been diagnosed with a number of psychiatric disorders by various health care providers, including PTSD, depression, schizophrenia, mood disorder, and personality disorder. 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will accordingly consider entitlement to service connection for any and all psychiatric disorders, to include PTSD. The Veteran requested scheduling of a personal hearing before a Veterans law Judge, to be held at the RO. Such was scheduled for July 2010, but the Veteran was unable to appear due to his incarceration. The Veteran was again for a hearing in May 2011 but was unable to appear due to his incarceration. Although he requested rescheduling, his imprisonment meant that he would be unable to appear for hearing in any timely manner. In June 2013, he was therefore offered several alternatives to personal testimony. In the July 2013 correspondence, the Veteran indicated that he understood the Board's position on the holding of a hearing due to his incarceration and noted that he "will not require the Board to Attempt to hold Action on my case claim[s] indefinitely." Rather than wait until his release from incarceration, the Veteran elected to submit written argument in his case which was received in July 2013 and his representative has submitted written argument on his behalf. In light of the foregoing, the Board will continue with appellate review of the case. 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 Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for service connection for an acquired psychiatric disability to include PTSD. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran claims that he has an acquired psychiatric disorder to include PTSD as a result of his service to include claimed mistreatment by his superior officers. The Board notes that the Veteran has been previously denied service connection for PTSD based on a lack of a verified stressor. In a November 2008 memorandum, a coordinator from the U.S. Joint Service Records Research Center (JSRRC) issued a formal finding of a lack of information required to corroborate the Veteran's stressors. However, as noted above, given the other psychiatric diagnoses of record to include depression, major depressive disorder and schizophrenia, and in accordance with the ruling in Clemons, the Veteran's appeal for service connection for psychiatric disability must be broadly construed to encompass claims for service connection for an acquired psychiatric disorder, to include PTSD. In a July 2008 correspondence, the Veteran also claimed that he has a preexisting psychiatric condition which was permanently aggravated beyond its natural progression by his service. The Veteran's August 1975 entrance examination was negative for complaints or treatments related to a psychiatric disorder. However, a March 1977 service treatment note indicated that there was no evidence of psychosis but the impression was a character and behavior disorder that was manifested as immature personality. While the Veteran' August 1975 entrance examination was negative for complaints or treatments related to a psychiatric disorder, multiple post-service treatment reports have indicated that the Veteran had a history of psychiatric treatment prior to his service. For instance a November 1996 private treatment report noted that the Veteran had a history of psychiatric treatment both as a child and an adult as he witnessed his father kill his mother and grandmother. The treating physician also noted that the Veteran had been treated at the facility in 1975 and 1983 and that he had a previous diagnosis of adjustment disorder with depressed mood. Additionally, a February 2007 VA treatment report also noted that the Veteran had undergone psychiatric treatment since 1972 as at the age of 9 years old he witnessed the murder of his mother and maternal grandfather by his father. The Axis I diagnosis was chronic PTSD, severe major depressive disorder and psychosis not otherwise specified as well as cocaine, alcohol and nicotine dependence. Notably, the Veteran has yet to undergo a VA examination regarding an acquired psychiatric disability to include PTSD. Given the facts noted above, the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for an acquired psychiatric disability to include PTSD, and that further medical examinations and opinions in connection with this claim is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (4). Accordingly, the Veteran should undergo an examination to determine if the Veteran has an acquired psychiatric disability, to include PTSD, that is related to his service. Additionally, as it was shown on private and VA post-service treatment records that a psychiatric disability might have preexisted his service, a VA examiner should also provide an opinion as to whether any psychiatric disability preexisted service, and if so, whether it was aggravated beyond its natural progression during service. See 38 U.S.C.A. § 1153 (West 2002) (providing that a pre-existing disease or injury will be considered to have been aggravated by active service where there is an increase in disability during service absent a finding that the increase was due to the natural progress of the disease). Although the Veteran is incarcerated, his incarceration does not negate VA's statutory obligation to assist in the development of his claims. 38 U.S.C.A. §5103A. Further, the Court has indicated that even though incarcerated, a Veteran should be accorded the same assistance as his fellow, non-incarcerated Veterans. See Bolton v. Brown, 8 Vet. App. 185 (1995). While VA does not have the authority under 38 U.S.C.A. §5711 to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility, VA's duty to assist an incarcerated Veteran extends, if necessary, to either having him examined by a fee-basis physician or requiring a VA physician to examine him at the prison where he resides. Id. at 191. The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated veterans. The manual calls for the AOJ or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. See M21-1MR, Part III.iv.3.A.11.d. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should request the Veteran to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. The RO or AMC should make appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO or AMC should take all reasonable measures to schedule the Veteran for the examination requested below. If the Veteran remains incarcerated, the RO or AMC should confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination or if an examination at the prison is feasible. See M21-1MR, Part III. iv.3.A.11.d. If that is not possible, the RO or AMC should address the feasibility of scheduling the Veteran at the prison by (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. If such examination is feasible, the examination should be scheduled at the prison. If none of the options are feasible, the RO or AMC should fully explain why none of the examinations could be scheduled. In the event that the above examination is not conducted, documentation needs to be obtained which shows that notice scheduling the examination was sent to the address of incarceration and that the Veteran was not prevented from being examined due to his incarceration. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. If it is possible for the Veteran to be examined, schedule him for an examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has a psychiatric disorder that had its onset or was aggravated during active service or; is otherwise related to any incident of service, or; whether it existed prior to service and was aggravated beyond its natural progression by service. Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether the Veteran has an acquired psychiatric disability and if so, whether the acquired psychiatric disability diagnosed on examination (1) clearly and unmistakably preexisted service, and, if so (2) whether it clearly and unmistakably was not aggravated by service beyond its natural progression during service. For purposes of this analysis, aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The examiner should also offer an opinion as to whether the Veteran currently has PTSD under the diagnostic criteria of DSM-IV; and if so, whether such PTSD is due at least in part to a verified in-service stressor event or fear of hostile action during active service. The VA examiner should consider and discuss the Veteran's reported history and contentions, as well as, any other pertinent medical nexus evidence of record. The rationale for all opinions expressed must be provided. If the examiner is unable to provide the requested opinion, he or she must explain why the opinion cannot be provided. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned 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 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). _________________________________________________ DAVID L. WIGHT 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).