Citation Nr: 1333172 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-19 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from October 2000 to October 2004 and from August 2010 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Jurisdiction was subsequently transferred to the RO in Houston, Texas. The Board notes that the psychiatric claim on appeal has been developed as a claim for PTSD. However, the Court of Appeals for Veterans Claims has 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the claim on appeal has been recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD. In July 2013, the Veteran testified at hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. During the hearing, the Veteran also submitted additional evidence with a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2012). In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals a copy of the hearing transcript. The remaining documents in the paperless claims file are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran contends that her current psychiatric disorder is related to events during service. In a February 2008 stressor statement, she described specific incidents during her first deployment to Iraq from 2003 to 2004. She reported that, after arriving at the Baghdad International Airport in October 2003, her unit was hit with mortar rounds and that they had to run to secure the perimeter with their combat gear. She related that they were hit with more mortar rounds that blew the windows out of the barracks and company headquarters later that night. She stated, "I feared for my safety and my life that night." She also reported that, while she was stationed at Abu Ghraib, the prisoners and civilians, inside and outside of the prison, rioted during Ramadan. She further noted that there was an increase in the detonation of improvised explosive devices (IEDs) and stated that the prisoners managed to break the water line inside of the prison, which flooded the road and caused the Veteran's truck to tip over and lean on prison fencing. She stated, "At that time[,] I feared becoming a hostage as they surrounded my truck." During a June 2004 Vet Center psychosocial assessment, the Veteran reported that, during her service as an Army truck driver, she drove a Humvee, a 2 1/2 ton cargo truck, a 20 ton dump truck, and large passenger busses. She indicated that her Engineer Battalion was initially stationed at the Baghdad International Airport, where they did rapid runway repair and built berms. She stated that they were later sent to Abu Ghraib prison to do clean up and repairs and to help bring the prison up to Geneva Convention standards. She reported that her unit frequently traveled alone on Iraqi roads and experienced "close calls" with rocket propelled grenades (RPGs) and IEDs. During a November 2011 VA initial PTSD assessment, the Veteran reported that her unit was mortared and exposed to roadside bombs on a daily basis while they were stationed at Abu Ghraib. She reported that the prisoners had watered down the road by the prison gate and tried to create a sink hole for her truck to sink into so they could climb onto her truck and escape the prison. She also stated that, at another time, someone was taking pictures of her and the other female soldiers in the showers. She further stated that she had to "deal with the mass graves." She noted that, at that time, while she was not physically injured, others were physically injured, and she thought her life and others' lives were in danger. Notably, in a November 2011 VA PTSD clinic initial assessment, the Veteran reported that her current mental health symptoms continued since her first deployment to Iraq from 2003 to 2004. While the examining psychologist noted that the Veteran appeared to experience significant anxiety symptoms, she did not meet the requirements for a PTSD diagnosis at that time. Rather, he diagnosed her with an adjustment disorder with mixed anxiety and depressed mood. However, during a VA initial psychiatric evaluation in June 2012, the examining psychiatrist diagnosed the Veteran with depression, not otherwise specified, and chronic PTSD. A review of the private, Vet Center, and VA treatment notes associated with the record also shows that the Veteran was diagnosed with anxiety (see June 2007 private treatment note), PTSD (see June 2007 private treatment note, June 2007 Vet Center psychosocial assessment, and June 2012 VA treatment note), an adjustment disorder with mixed anxiety and depressed mood (see November 2011 VA treatment note), and depression, not otherwise specified (see June 2012 VA treatment note). In light of the various diagnoses, the Board finds that a VA examination is necessary to clarify the nature and etiology of any and all psychiatric disorders that may be present. Additionally, as discussed during the July 2013 hearing, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. However, excepting the undersigned Veteran Law Judge's discussion during the hearing, the Veteran has not been provided the revised provisions of 38 C.F.R. § 3.304(f). Therefore, upon remand, the Veteran should be notified of the amended regulation, and the claim should be considered under those provisions. The Board further notes that there appear to be missing service records. In this regard, a DD 214 verifies that the Veteran had active service from August 2010 to September 2011, yet there are no service personnel or treatment records dated during that time period. Thus, on remand, such records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the appropriate service department and/or records custodian(s), to include NPRC, with a request for copies of any outstanding service personnel and treatment records, to specifically include records from the Veteran's most recent period of active service from August 2010 to September 2011. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action to be taken and she should be provided an opportunity to submit copies of the outstanding records. 2. The RO/AMC should provide the Veteran an additional notice letter. The letter must comply with the revised provisions of 38 C.F.R. § 3.304(f) and she should be provided an opportunity to submit any additional information to support her claimed stressors. 3. The RO/AMC should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, any VA treatment records not associated with the record. The RO/AMC should provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO/AMC should then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform her and provide her an opportunity to submit copies of the outstanding medical records. 4. After obtaining any additional records identified by the Veteran, she should be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is requested to identify all current psychiatric disorders. He or she should specifically indicate whether the Veteran has an anxiety disorder, a depressive disorder, and/or PTSD. For each diagnosis identified other than PTSD, the examiner should discuss whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to her military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) Regarding PTSD, the RO/AMC should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The RO/AMC should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 6. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 7. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ JESSICA J. WILLS 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).