Citation Nr: 1332686 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-34 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), schizoaffective disorder, and psychosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which declined to reopen a previously denied claim of entitlement to service connection for PTSD. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2010. A transcript of that hearing is of record. In a January 2011 decision, the Board reopened the Veteran's claim of entitlement to service connection for PTSD and remanded the claim for further evidentiary development. Although the Veteran initially indicated that he was seeking service connection for PTSD, a review of the record reveals that he has been noted to have other psychiatric diagnoses, to include a major depressive disorder, a schizoaffective disorder, and a possible psychosis. In this regard, the United States Court of Appeals for Veterans Claims (Court) 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, 5-6 (2009). Therefore, the Board has recharacterized the Veteran's claim on appeal as a claim for service connection for a psychiatric disorder, to include PTSD, MDD, schizoaffective disorder, and a psychosis. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the further delay, it is necessary to pursue additional development to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. The Veteran's VA treatment records reflect multiple psychiatric diagnoses, including a specific diagnosis of PTSD. Notably, the Veteran has raised multiple alleged stressors with respect to his claimed PTSD, including an incident where his ship collided with another vessel while at sea, incidents of personal assault, an incident where he was trying to awaken a fellow service member who turned out to be dead, and multiple incidents of personal assault. The Board remanded the Veteran's psychiatric disorder claim in January 2011 in order to afford him a new VA examination to determine the nature and etiology of his diagnosed psychiatric disorders. This was conducted in February 2011. The VA examiner indicated that the Veteran did not meet the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria for a diagnosis of PTSD. The examiner appeared to support this conclusion by noting that the Veteran's substance abuse history was more appropriately based on a heavy genetic loading for alcohol dependence, and that this loading was more likely than responsible for his turning to alcohol when he found himself out of the Navy without the ability to manage in society. The examiner further noted that, based on the Veteran's objective psychological test results, it was possible to state that it was more likely than not that the intensity, type, or frequency of symptoms of emotional distress that he reported were not consistent with his history. The examiner further opined that it was less likely than not that the Veteran's schizoaffective disorder and polysubstance abuse dependence were either caused or aggravated by his military service. Here, the examiner noted that while there was a report indicating that the Veteran was hallucinating while in service, he was apparently able to downplay his internal experience. Moreover, the Veteran's personnel records at the end of his service pointed to adequate or better performance ratings. Thus, while the examiner appeared to accept the diagnoses of a schizoaffective disorder and polysubstance abuse dependence, he only expressly addressed the issue of aggravation of these disabilities. Notably, there appears to be no clear and unmistakable evidence of a preexisting psychiatric disorder, and the examiner did not fully address whether either of these disorders became manifest during or as a result of the Veteran's service. The examiner further concluded that the Veteran's reports of events surrounding his duties during service were of limited credibility. He noted that, based on objective psychological testing, review of the medical records, and the Veteran's description of his history, it was possible to state that it was more likely than not that the intensity, type, or frequency of symptoms of emotional distress the Veteran's reported were not consistent with PTSD. The examiner further suggested that prior PTSD diagnoses may have been invalid where such diagnoses were made without the benefit of objective psychological testing. Notably, the VA examiner did not address other psychiatric disorders raised in the Board's remand, including specifically his depressive disorder. Moreover, the examiner's opinion appears to be at least in part based on an inaccurate factual premise. Namely, the examiner noted that the Veteran's report of events surrounding his duties during service were of limited credibility. Since the time of his examination, however, the Veteran has submitted ship logs from his assigned vessel, the USS Navasota, confirming two of his reported stressors; the incident where his ship collided with the USS Kansas City, and the incident surrounding the finding of a fellow service member who was dead. Accordingly, the Board finds the credibility of the Veteran's reports of traumatic incidents to be highly bolstered by this evidence. Given the foregoing, the Board finds that remand is necessary in order to afford the Veteran a new VA examination based on all the evidence of record, including all psychiatric diagnoses and confirmed traumatic in-service incidents. The Board had previously remanded the Veteran's claim to ensure that he was provided legally adequate notice regarding his PTSD claim, to especially include notice regarding substantiating a PTSD claim based on in-service personal assault. While the Veteran was given additional VCAA notice in January 2012, there is no indication that he was provided legally adequate notice to address a claim for PTSD based on in-service personal assault pursuant to 38 C.F.R. § 3.304(f). See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand). Finally, in July 2012, the Veteran submitted additional relevant evidence in support of his claim after the April 2012 supplemental statement of the case (SSOC) had been issued. He did not waive initial RO consideration of this evidence. Thus, where there has not been a waiver of RO consideration of this evidence, remand is also necessary for initial RO review of this evidence and the issuance of an SSOC. 38 C.F.R. § 20.1304 (2013). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VCAA notification letter informing him of the information and evidence required to substantiate a service connection claim for PTSD based on in-service personal assault. The letter should provide information in accordance with 38 U.S.C.A. § 5103(a), and 38 C.F.R. §§ 3.159(b) and 3.304(f). In particular, the notice must advise the Veteran that evidence from sources other than his service records and evidence of behavior changes may constitute credible supporting evidence of the in-service stressor. Then allow the Veteran the opportunity to furnish this type of evidence or to advise VA of potential sources of such evidence. 2. Thereafter, schedule the Veteran for a VA psychiatric examination by a psychiatrist or psychologist other than the individual who conducted the February 2011 VA examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner must provide an opinion as to whether the Veteran meets the DSM-IV criteria for any current psychiatric disorder, to include PTSD, MDD, schizoaffective disorder, or a psychosis, or whether he has met such criteria at any point during the pendency of his appeal (since August 2005). If no psychiatric disability is found to have been properly diagnosed during that time frame, the examiner should reconcile this finding with prior diagnoses of record. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability properly diagnosed during the pendency of the Veteran's appeal had its clinical onset during his active service or is related to an in-service disease, event, or injury. If PTSD is diagnosed, the examiner must identify the alleged in-service stressor(s) on which a PTSD diagnosis is based. The examiner also should state whether such PTSD diagnosis is based on the Veteran's fear of hostile military or terrorist activity and, if so, whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the symptoms are related to the claimed stressor. In addressing the Veteran's claimed PTSD, the examiner should specifically address the Veteran's multiple claimed stressors, especially including stressors that have been corroborated by the evidence of record (e.g. ship collision, finding fellow service member who was dead, serving in close proximity to combat zone). If a diagnosis of a psychosis is warranted by the record, the examiner should provide an opinion with respect to whether such psychosis was manifest within one year after the Veteran's separation from service in March 1975, and if so, the degree of severity manifest by such psychosis in that time period. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall, supra. 4. Finally, readjudicate the Veteran's claim for service connection for a psychiatric disorder. If the claim remains denied, provide him and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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. 2013). _________________________________________________ ERIC S. LEBOFF 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. See 38 C.F.R. § 20.1100(b) (2013).