Citation Nr: 1334669 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-32 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a gastrointestinal disability, claimed as nervous stomach, to include as secondary to PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1970, including service in the Republic of Vietnam from November 1969 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2007. A transcript of this hearing has been associated with the Veteran's VA claims folder. This case was last remanded in October 2012. Although the Board regrets the additional delay, for the reasons stated below further development is still required in this case. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. 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's claim for service connection for PTSD has been remanded several times because the VA medical opinions obtained regarding the Veteran's claims have been inadequate. In this case the VA has conceded that the Veteran's claimed in-service combat stressors were found to be related to fear of hostile military or terrorist activity and consistent with the places, types, and circumstances of the Veteran's service. The September 2010 stressor review checklist states that the Veteran's verified stressors were watching his fellow comrades die in front of him, helping rescue to medivac some in body bags, and sitting behind his bunker afraid of enemy attacks. The October 2012 Board remand instructed that the Veteran be provided a VA psychiatric examination in which the examiner should address whether the Veteran has PTSD related to his conceded fear of hostile military or terrorist activity, with a complete explanation for the opinion. The Veteran was provided a VA examination in January 2013. The examiner opined that the Veteran does not meet the DSM-IV-TR criteria for PTSD, but did not state which criteria the Veteran did not meet. Furthermore the examiner discussed that the Veteran had related on several occasions that he was not involved in direct combat. However, the Veteran's exposure to events resulting in fear of hostile military activity has been conceded. Thus the examiner's discussion of the Veteran not being involved in direct combat in determining whether the Veteran has PTSD makes the opinion that the Veteran does not have PTSD to be inadequate. Additionally the VA examiner failed to fill out the disability benefits questionnaire (DBQ) questions regarding the criterion related to PTSD. Such criterion include whether the traumatic event is reexperienced by the Veteran, whether the Veteran persistently avoids stimuli associated with the trauma, and whether the Veteran has persistent symptoms of increased arousal. With respect to the claim of service connection for a gastrointestinal disability, the Board notes that the Veteran has contended that this disability is secondary to his psychiatric disorder. As such, resolution of the psychiatric disorder claim will affect the outcome of the gastrointestinal disability claim. Therefore, these claims are inextricably intertwined, and the Board will defer adjudication of the gastrointestinal disability claim until the development deemed necessary for the acquired psychiatric disorder claim has been completed. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (Noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The Board further finds that any outstanding VA treatment records regarding the Veteran's acquired psychiatric disorder and gastrointestinal condition should be obtained while on remand. In addition, the Veteran should be advised that he can submit a statement from his treating psychiatrist or psychologist concerning whether PTSD and/or depression are related to service. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA medical records pertaining to the Veteran that date from December 12, 2012. 2. Inform the Veteran that he can submit a medical opinion, with an explanation for the conclusion, from his treating psychiatrist or psychologist as to whether PTSD and/or depression are related to service, to include the conceded fear of hostile military or terrorist activity. Allow an appropriate period of time for a response. 3. After obtaining any additional records to the extent possible, if the claim is not granted, afford the Veteran another VA psychiatric examination. The VA claims folder should be made available to examiner for review and the examiner should indicate in the examination report that the claims folder was reviewed. The examiner should also note that VA has determined that the Veteran was exposed to a stressor related to the fear of hostile military or terrorist activity. See the PTSD Stressor Review Checklist dated in September 2010 in Volume 3. It is also noted that VA clinicians have diagnosed PTSD for years. In this regard, the U.S. Court of Appeals for Veterans Claims has held that a "PTSD diagnosis by a mental health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Court further explained in Cohen, "[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." Id. Accordingly, it is requested that the examiner address whether it is at least as likely as not that the diagnosed PTSD is related to his active service, to include the conceded fear of hostile military or terrorist activity. A complete explanation for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular review the 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 v. West, 11 Vet. App. 268 (1998). 5. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim. The SSOC should show review of all the evidence received since the February 2013 SSOC. The Veteran should be given an opportunity to respond prior to returning the case to the Board for further review. 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. 2013). _________________________________________________ S. S. TOTH 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) (2013).