Citation Nr: 1335033 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-07 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota 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 respiratory disorder, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Brian Held, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from March 1972 to July 1973. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which denied service connection for PTSD and determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for a respiratory disorder. With respect to the Veteran's claim for service connection for an acquired psychiatric disorder, the Board observes that service connection for a mental disorder was previously denied in a March 1991 rating decision. However, VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c) (2013). In this case, the Veteran's service personnel records were associated with the claims file subsequent to the issuance of the March 1991 rating decision. Such reveal that the Veteran was on unauthorized absence (UA) or absent without leave (AWOL) at various times and was given a summary court martial/Captain's Mast on several occasions for failure to bet a lawful order and UA/AWOL. As such evidence provides a more complete picture of the Veteran's behavior during his military service, which is relevant to his claim for service connection for an acquired psychiatric disorder based on personal and sexual assault and/or harassment, the Board finds such records fall within the provisions of 38 C.F.R. § 3.156(c) and VA must reconsider the issue of service connection for a mental disorder on a de novo basis. Furthermore, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Id. (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Additionally, as relevant to the Veteran's claim for service connection for a respiratory disorder, the Board notes that a rating decision dated in November 2004 and issued in December 2004 denied the Veteran's claim of entitlement to service connection for a respiratory disorder and exposure to asbestos based, in part, on the fact that the evidence did not show that the Veteran had a diagnosis of a chronic respiratory disorder. However, a VA treatment record dated in May 2005 and associated with the claims file in June 2005, i.e., within one year of the issuance of the December 2004 rating decision, reflects a diagnosis of chronic obstructive pulmonary disorder (COPD) based on a chest X-ray. VA regulations provide that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). As such evidence is new and material in that it demonstrates a current diagnosis of a respiratory disorder and was received prior to the expiration of the appeal period (i.e., within one year of the issuance of the December 2004 rating decision), the Board finds that 38 C.F.R. § 3.156(b) applies and the Veteran's claim for service connection for a respiratory is reviewed on a de novo basis. Therefore, such issue has been characterized as such on the title page of this decision. The Board also notes that, in his February 2010 substantive appeal (VA Form 9), the Veteran requested a Board video-conference hearing before a Veterans Law Judge. However, he subsequently withdrew his request for a Board hearing and instead elected a hearing before RO personnel in a March 2010 letter. Thereafter, the Veteran testified before a Decision Review Officer (DRO) in March 2010. A copy of the hearing transcript is of record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In regard to the Veteran's claim for service connection for an acquired psychiatric disorder, he reported that he was verbally, physically, and sexually assaulted during basic training. Specifically, the Veteran reported that, on several occasions, a blanket was thrown over his head, he was dragged from his bed, and beaten until he could no longer hold his urine. The Veteran also reported that at one point the commander's patrol stick was shoved up his rectum. He further indicated that he was physically assaulted when either his commander or other members of his unit cut his nose because he had not shaved properly. The Veteran also alleged that he was the subject of humiliation during basic training. Therefore, he contends that, based upon such verbal, physical, and sexual assaults, he has a current acquired psychiatric disorder, to include PTSD, related to his military service. The Veteran has also claimed that he exhibited behavioral disorders after boot camp, which was evidence through his dismissal from electronics school. In this regard, his service personnel records reflect that the Veteran was on UA or AWOL at various times and was given a summary court martial/Captain's Mast on several occasions for failure to bet a lawful order and UA/AWOL. Post-service records reflect diagnoses of various acquired psychiatric disorders, to include PTSD, mood disorder, depression, psychosis, bipolar affective disorder, and adjustment disorder. The record reflects that the Veteran has described both childhood and military abuse, and his treatment providers have related the Veteran's variously diagnosed acquired psychiatric disorders to both his childhood and military trauma. Specifically, a March 2005 statement from the Veteran's VA social worker indicated that the Veteran had PTSD due to a severely dysfunctional childhood with an alcoholic mother. A March 2008 VA treatment record found that the Veteran had PTSD related to both childhood and military trauma. Additionally, in July 2010, VA obtained a medical opinion in which the examiner determined that there was no evidence in the Veteran's military records that he was assaulted during his basic training. He further found that, as the Veteran finished basic training in May 1972 and did not begin going AWOL until September 1972, it was unlikely that going AWOL was a 'marker' indicating that he was assaulted during basic training. However, subsequent to the July 2010 VA opinion, in a July 2011 VA treatment record, the Veteran's treating psychiatrist opined that it was very likely that the Veteran's PTSD was related more to the Veteran's military trauma than any prior childhood trauma or abuse. Likewise, in July 2011, the Veteran's treating social worker indicated that it was just as likely that the Veteran's PTSD is related to his military trauma. However, such treatment providers offered no rationale for their opinions. Therefore, as there remains conflicting evidence as to the nature and etiology of the Veteran's acquired psychiatric disorder, the Board finds that he should be afforded a VA examination. In this regard, the Board notes that it is well established that a medical opinion may be used to corroborate a personal-assault stressor. See Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir. 2011). Furthermore, the examiner should be requested to address the significance, if any, of the Veteran's childhood trauma. In regard to the Veteran's claim for service connection for a respiratory disorder, which has been diagnosed as COPD, he has reported that he served upon the USS Piedmont in an engineering room with asbestos-covered pipes. The Veteran also reported that he has been treated for breathing problems since 1978. The evidence of record also shows that the Veteran has a long history of smoking. The Board thus finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his respiratory disorder. Finally, while on remand, the Veteran should be requested to identify any VA or non-VA healthcare provider who treated him for his acquired psychiatric disorder and/or respiratory disorder. Thereafter, all identified records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his acquired psychiatric disorder and/or respiratory disorder. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of an in-service stressor, to specifically include any verbal, physical, and/or sexual assault. If the stressor involves an in-service assault, the examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service. The examiner is specifically asked to comment upon the significance, if any, of the Veteran going UA or AWOL at various times and being given a summary court martial/Captain's Mast on several occasions for failure to bet a lawful order and UA/AWOL, and other lay testimony as to behavioral changes after the claimed incident. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service. The examiner is also requested to discuss the significance, if any, of the Veteran's childhood trauma. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his respiratory disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following an examination of the Veteran and a review of the Veteran's service treatment records, personnel records, lay statements, and VA and private records, the examiner should identify all currently diagnosed respiratory disorders. Thereafter, he or she should offer an opinion as to whether any currently diagnosed respiratory disorder is related to the Veteran's military service, to include his alleged exposure to asbestos. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed respiratory disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his agent should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ A. JAEGER 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).