Citation Nr: 1332893 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-15 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Oakland California. The Board acknowledges that the November 2007 rating decision denied service connection for depression, and that a later February 2010 rating decision denied entitlement to service connection for PTSD. The Board notes, however, that the Veteran filed the November 2006 claim on appeal herein more generally for service connection for a "mental" disorder. See also DRO Hearing Transcript (addressing PTSD). In light of the more generalized nature of the Veteran's claim for service connection for a "mental" disorder on appeal herein, and based on the Veteran's statements in support of his claim as well as the medical evidence of record referencing both depression and for PTSD, the Board has recharacterized the issue on appeal more broadly (and has thereby merged the two issues adjudicated by the RO into one issue) as for service connection for an acquired psychiatric disorder, to include depression and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran has not been prejudiced by this recharacterization herein, as he would otherwise not have an opportunity to appeal the denial of his claim herein as it relates to PTSD. 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 The Veteran served on active duty from June 1965 to June 1969. He claims that he has an acquired psychiatric disorder, to include depression and PTSD, that had its onset in service or is otherwise related to service. He alleges that he has experienced symptoms of depression since service. The Veteran asserts that he served temporary duty in Danang from January 1966 to March 1966 with the "3rd Bomb Wing," during which his building came under attack with rocket fire that knocked him down and killed others (and that he saw dead bodies). See VA Treatment Record, July 2008; Statements in Support of Claim (two), undated (circa September and October 2008). He testified at the DRO hearing that he was the only member of his unit to go. See Transcript at 17. The Board notes that the Veteran at other times has alleged that his service in Danang was instead from June 1967 to September 1967, see April 2003 Form 21-526 (pension), or from April 1966 to May 1966 with the 366th Tactical Fighter Wing, see February 2009 stressor statement. The Veteran clarified at the DRO hearing that he served temporary duty in Vietnam for only one month around the summer of 1967, and that the rocket attack took place around June or July of 1967. See Transcript at 5-6, 13-15. The Veteran has also asserted that during basic training, he was beaten by two sergeants due to his shoes not being shined properly, and that while he was serving in Germany, his vehicle was followed by a black vehicle that he was later told were "Russians." He has also reported having been scared for his life on one occasion in July 1969 when he was in a vehicle at a stop light in downtown Stockton, California and he heard a loud bang in the car next to him, which he reports prompted him to break a bottle and cut a man's throat in the car. See Stressor Statement, February 2009; DRO Hearing Transcript at 8-9. With regard to the Veteran's service treatment records, a March 1966 service treatment record reflects that the Veteran reported that he was homesick, could not sleep well, and felt depressed. It was noted that his hands were shaking, and that he was counseled. A November 1966 record reflects that the Veteran had lost 10 pounds in three to four months, that his hands were trembling, and his nails were bitten, and an impression of weight loss, probably emotional, was recorded. Post-service, VA treatment records during the period on appeal reflect diagnosed depression and PTSD. The Board acknowledges that a copy of the Veteran's service personnel file has been associated with the claims file, which contains no record of the Veteran's alleged temporary duty in Vietnam, of his vehicle having been chased by "Russians," any beating incident with his sergeants, or the downtown Stockton fight incident (and the Board adds that the Veteran has not alleged that the beating incident involving his sergeants was ever reported to the military police or that it was otherwise pursued by him, or that the downtown Stockton incident was ever reported to or investigated by the local police). The Board notes, however, that there is no record of attempt at verification specifically of the Veteran's alleged temporary duty in Vietnam, or of his alleged incident involving being chased by "Russians" while serving in Germany. Therefore, the Board finds that a remand is necessary to further attempt to verify the Veteran's alleged temporary duty in Vietnam and the alleged rocket fire incident there, as well as his alleged incident in Germany involving his car being chased. Also, the Veteran has identified several private treatment records that are missing from the claims file, and also certain private treatment records cite other outstanding mental health treatment records. Specifically, a July 2001 private treatment record from Dr. M.F. of the San Joaquin Mental Health Center cites to several missing mental health treatment records from that facility dated in September 1973, and from June 2000 to March 2001 (the other cited records are in the claims file). See also Form 21-4142, March 2003. Also, the Veteran identified on a February 2009 Form 21-4142 treatment by Dr. G.M. (at that same facility) between May 1998 and February 2001, and although a February 2001 record is in the claims file, no further attempt has been made to obtain any other treatment records from Dr. G.M. Also, on that same Form 21-4142, the Veteran identified treatment at that facility by Dr. M.D. from August 1996 to May 2007, and while the Board acknowledges several treatment records from that facility during that period of time in the claims file, none of these appear to be from Dr. M.D. The Board also acknowledges that in June 2007, the RO requested copies of "all" of the Veteran's private treatment records from that facility. Even so, the Board finds that because records appear to remain outstanding from that facility, a remand is required so that a second attempt may be made to obtain all of the above outstanding records from the San Joaquin facility, including from Drs. G.M. and M.D. Also, the February 2009 Form 21-4142 reflects that the Veteran identified outstanding treatment records from Dr. R.N dated from November 1985 to January 2000, which have not been obtained. In addition, an October 2008 letter from A.W. reflects that she provided mental health treatment, and the claims file contains bills dated in May 2008 and July 2008, but no underlying treatment records. Also, a February 2001 mental health report prepared by S.W. notes a treatment history in October 1999, July 2000, and December 2000, indicating that there may be outstanding treatment records prepared by S.W. that have not been obtained. Therefore, a remand is also necessary so that any outstanding private treatment records from A.W., Dr. R.N., and S.W. may be obtained. The Veteran has also identified treatment by Dr. M.B. at the VA medical center dated between August 2007 and June 2008 that have not been associated with the claims file (as the VA treatment records dated since July 2008 in the claims file include records from Dr. M.B.). Therefore, on remand, any outstanding VA treatment records dated from August 2007 to June 2008 should be obtained. The Board notes that the Veteran has not been provided with a VA examination relating to his claim. As shown above, the service treatment records note that the Veteran felt depressed in service, he has asserted among other things that he has felt depressed since service, and he has a current diagnosis of depression. Therefore, the Board finds that the low threshold requirement for requiring a VA examination has been met, and that the Veteran's claim must therefore be remanded so that he may be provided with a VA examination relating to his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Attempt verification of the Veteran's reported in-service stressors involving: a) Temporary duty in Danang, Vietnam between June 1967 and September 1967, during which his building came under attack with rocket fire and there were soldiers killed; note the Veteran reports that he was assigned to the 366th Tactical Fighter Wing in Vietnam (and that while stationed in Guam, he was attached to the 354th Bomber Wing) b) His car being chased in Germany by "Russians." 2. Obtain all of the outstanding private treatment records as follows (and to that end, request that the Veteran provide the requisite Forms 21-4142): a) San Joaquin Mental Health Center dated in September 1973, and from June 2000 to March 2001; b) Dr. G.M. of the San Joaquin Mental Health Center dated from May 1998 to February 2001; c) Dr. M.D. of the San Joaquin Mental Health Center dated from August 1996 to May 2007; d) Dr. R.N. dated from November 1985 to January 2000; e) A.W. dated from May 2008 to October 2008; and f) S.W. dated in October 1999, July 2000, and December 2000; If any of these records are unable to be obtained, this should be specifically noted in the claims file. 3. Obtain copies of all of the Veteran's VA treatment records, including all mental health records, dated from August 2007 to July 2008. 4. After all of the above development has been completed, schedule a VA examination by a provider with the requisite expertise to determine the etiology of any current acquired psychiatric disorder, to include depression or PTSD. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. Following review of the claims file, including a copy of this remand in its entirety, and examination of the Veteran, the examiner should identify all current acquired psychiatric disorders. The examiner should then provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent) that each current acquired psychiatric disorder is related to the Veteran's service. If PTSD is not diagnosed on examination, please ask the examiner to provide a thorough rationale for such a conclusion. Review of the entire file is required; however, attention is invited to the service treatment records dated in March and November 1966, showing treatment for nervous symptoms. The examiner is advised that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A discussion of the underlying reasons for all opinions expressed must be included in the examination report, to include reference to pertinent evidence where appropriate. 5. Then, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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 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). _________________________________________________ BETHANY L. BUCK 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).