Citation Nr: 1335443 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-10 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) and depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Doernberg, Associate Counsel INTRODUCTION The Veteran served on active military duty from August 1965 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal. 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. REMAND Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. The Board must remand this claim for a VA addendum opinion, in order to obtain outstanding medical records, and to clarify whether the Veteran is requesting a DRO hearing or a hearing before the Board. First, an addendum opinion is required because one of the Veteran's stressors was verified and another was potentially verified after the VA examination and opinion of record were provided. First, VA treatment records generally indicate current diagnoses of PTSD and depressive disorder. Service treatment records include evidence of an injury in service in November 1967, but it is not clear from the records that this injury was related to a personal assault. A VA psychological examiner was unable to express an opinion regarding the Veteran's PTSD without resorting to speculation as to whether the alleged personal assault claimed by the Veteran occurred. The examiner found that he could not resolve the issue of whether the Veteran suffered a military sexual assault. However, the Veteran claims three stressors including: 1) military sexual assault, 2) witnessing the death of a pilot while in service, and 3) witnessing a person's death in a bomb elevator. Subsequent to the VA examiner's opinion, the Veteran submitted the lay statement of his wife supporting his reports of military sexual assault. Additionally, the newly submitted squadron history corroborates the Veteran's claimed stressor concerning witnessing the death of a pilot in January 1969, which is consistent with the Veteran's reports. Thus, regarding PTSD, the opinion is insufficient because it has not considered this evidence in formulating conclusions concerning the Veteran's PTSD. Regarding depressive disorder, the examiner's opinion is also insufficient because it fails to address whether the Veteran's depressive disorder resulted from a disease or injury incurred in or aggravated by active military service. Second, remand is required to obtain potentially outstanding medical records. In June 2012, the Veteran stated that his records from a private provider had been forwarded to VA. These records are not associated with the claims file. It is therefore necessary to obtain these records if they are available. Third, remand is required to clarify if the Veteran desires a RO or Board hearing. In a September 2013 request, the Veteran appears to request a DRO hearing or a Board hearing. The RO therefore must determine whether the Veteran continues to request a DRO hearing or if the Veteran is requesting a hearing before the Board. Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the appropriate VA medical facilities and attempt to obtain any additional medical treatment records pertaining to the Veteran since July 2011 from the VA Medical Center in Providence, Rhode Island. All records obtained should be associated with the Veteran's claims file. 2. Following consultation with the Veteran, and after obtaining the appropriate waivers, the RO shall contact the provider named in the Veteran's June 2012 correspondence and attempt to obtain any outstanding records pertaining to the Veteran. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, a formal determination that such records do not exist or that further efforts to obtain the records would be futile shall 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). 3. After any newly obtained records are associated with the claims file, the RO should refer the Veteran's claims folder to the July 2012 examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any acquired psychiatric disorders. 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, statements, and squadron history. The examination report must state whether this review was accomplished. If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. After careful review of all evidence, the examiner is asked to provide diagnoses of each relevant psychiatric disorder. If PTSD and/or depressive disorder are not diagnosed, the examiner must address the prior diagnoses of record. The examiner must then provide the following opinions: 1) Is it at least as likely as not (i.e., a probability of at least 50 percent or more) that the Veteran exhibited symptoms and behaviors consistent with behavioral changes expected to follow from the claimed personal assault, and if so, whether any of his current psychiatric diagnoses, to include PTSD and/or depressive disorder, are related to the alleged incident(s). The examiner must consider the Veteran's lay statements and the Veteran's wife's lay statement. 2) Is it at least as likely as not (i.e., a probability of at least 50 percent or more) that the Veteran's confirmed stressor of witnessing the death of a pilot was sufficient to produce PTSD and/or depressive disorder; and whether there is a link between the current symptomatology and this inservice stressor; and 3) Is it at least as likely as not (i.e., a probability of at least 50 percent or more) that the Veteran's stressor of witnessing a death in a bomb elevator was sufficient to produce PTSD and/or depressive disorder; and whether there is a link between the current symptomatology and this inservice stressor. The examiner must presume, for purposes of this examination only, that the stressor is verified. 4. Next, the Veteran should be contacted and asked whether he is still requesting a DRO hearing or if he requests that his September 2013 request be withdrawn. The RO should also determine whether the Veteran is requesting a hearing before the Board. 5. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 6. The RO will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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. 2013). _________________________________________________ K. MILLIKAN Acting 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).