Citation Nr: 1336000 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-02 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to an increased, compensable evaluation for a heart murmur. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from June 1975 to June 1978. The appeal comes before the Board of Veterans' Appeals (Board) from May and October 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, denying service connection for PTSD. The appeal also arises from a June 2010 rating action denying an increased, compensable rating for service-connected heart murmur. Jurisdiction has since transferred to the RO in Montgomery, Alabama. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD include claims for service connection for all psychiatric disabilities reasonably raised by the Veteran or the evidentiary record, based on the inherent unreasonableness of imputing self-knowledge of mental conditions from which the Veteran may be suffering. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has accordingly broadened the Veteran's psychiatric disorder claim to reflect a claim inclusive of other psychiatric disability also indicated within clinical records. In May 2013, the Veteran testified at a Travel Board hearing conducted at the Montgomery, Alabama, RO, before the undersigned. A transcript of that record is contained within the Veteran's Virtual VA file. 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 Treatment records reflect diagnoses of depression as well as PTSD. As noted in the Introduction, supra, recent Court precedent requires that the Board consider whether the Veteran's more broadly characterized psychiatric disability, to include PTSD and depression, may be causally associated with service. 38 C.F.R. §§ 303, 3.304(f) (2013); Clemons. Remand is therefore in order for additional notice and any indicated development with regard to the expanded claim. At his May 2013 hearing the Veteran stated that he had to cease his work at a power plant due to psychiatric difficulty. To this end, he was seen by a psychiatrist through his former employer, the Tennessee Valley Authority (TVA). An August 2006 letter from the TVA informing of an award of disability retirement is of record, but it does not appear that records underlying that decision have been obtained. Records of that work-related psychiatric treatment or evaluation should be sought in furtherance of the Veteran's claim, as potentially relevant records. Also at the hearing, the Veteran's representative stated that the Veteran was in receipt of Social Security Administration (SSA) disability benefits. The claims file contains the fully favorable SSA disability determination, dated in July 2007, and the medical records underlying that determination. Hence, it appears that additional records need not be sought from the SSA. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence . . . cannot be foreclosed absent a review of those records"). As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection and meets the low threshold requirements there is an event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the evidentiary record indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also submitted a letter by a fellow soldier, dated in May 2013, addressing potential stressor incidents to support the Veteran's PTSD claim. Attempts to verify these asserted in-service events should be made through official sources. Official sources should also try to verify the incident as alleged by the Veteran in hearing testimony, of a fellow soldier being found dead in a canal in Germany around November 1977. If any such event is verified, a VA examination is in order to address PTSD as potentially due to service. Even if such events as are addressed in this letter are not verified by official sources, the presence of other psychiatric disability which the record suggests may be potentially related to service gives rise to the necessity of a VA examination to address the psychiatric disorder claim. 38 C.F.R. § 3.159(c)(4). As regarding the claimed stressor, in a VA Form 9 submitted in January 2008, the Veteran asserted that he and fellow soldiers were part of a search party to find a missing soldier who had been listed as AWOL, and that they had found the dead body of the soldier "in a little ravine" with "a big hole in his head." The Veteran informed that the situation had bothered him, and that, as he stated, "I kept pushing about it to find out what had happened, but I couldn't get any answers." He reported that his excessive insistence had resulted in his getting "an Article 15 for insubordination." He added that he had heard that the soldier had been killed "by some terrorists." The Veteran noted, "They finally took my clearance away from me and I didn't have access to any more information." The Veteran's service personnel records may potentially reflect any change security clearance status, Article 15s, and any surrounding circumstances. The Veteran's personnel records should accordingly be obtained, in furtherance of the claim. The Veteran was last examined for his service-connected heart murmur by VA for compensation purposes in April 2010, and current disability attributed to that murmur was not then found. Subsequent treatment records include recently submitted private records, including of care in April 2013 for complaints of chest pain. A cardiac catheterization was then performed, and the Veteran's chest pain was assessed as atypical, with the possibility of a psychiatric component. However, attribution of current symptoms to his heart murmur was not then indicated. At his May 2013 hearing the Veteran testified that his heart condition had grown more severe since the April 2010 examination. A contemporaneous examination is in order to ascertain the current nature of the service-connected disability. Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran updated 38 C.F.R. § 3.159(b) notice, to inform him of the evidence necessary to substantiate his claim for service connection for any current psychiatric disorders, to include depression and PTSD, and what evidence he is to provide and what evidence VA will attempt to obtain on his behalf. Advise him of the bases of claim for PTSD, and those for psychiatric disorders other than PTSD. Ask the Veteran to provide any additional evidence or information which may serve to corroborate his alleged stressor in support of his PTSD claim. The notice letter should also address the Veteran's remanded claim for increased evaluation for heart murmur. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of his claims. 2. Obtain and associate with the claims file (or Virtual VA file) all as yet unobtained records of treatment at VA or non-VA facilities, as reported by the Veteran, with appropriate authorization as indicated. 3. With appropriate authorization from the Veteran, obtain from the Tennessee Valley Authority (TVA) (the Veteran's former employer), records of his psychiatric treatment or evaluation, inclusive of those records underlying the decision awarding the Veteran disability retirement effective from August 2006. 4. Obtain the Veteran's service personnel records, including records of any Article 15s and any other disciplinary actions, warnings, and findings of insubordination. 5. The RO / AMC should undertake any additional stressor verification or other development indicated by the record. All requests to official sources or other sources, and all records and responses received should be associated with the claims file. This should include attempts to verify the events as described by a fellow soldier in the May 2013 letter contained within the claims file. This should also include verification of the assertion by the Veteran in hearing testimony, of a fellow soldier having been found dead in a canal in Germany around November 1977. Because these described events may have been characterized as homicides, service investigative records, to include criminal investigation records, should be sought. (A prior criminal records query in July 2008 had insufficient information, but more information has been associated with the record since that time.) 6. Thereafter, afford the Veteran a psychiatric examination by a licensed psychiatrist or psychologist, to address the nature and etiology of any current psychiatric disorder, including to address any PTSD or major depression found. The RO / AMC must provide the examiner with a statement informing of any alleged in-service stressor events that have been verified. The claims file must be made available to the examiner for review in conjunction with the examination. In addressing the questions below, the examiner's opinion must be informed by a review of the Veteran's medical history and findings as documented in service and post-service records, to include any prior examinations or treatments. To the extent credible and medically supportable, other evidence, including lay statements, may be used to support a diagnosis or an assessment of severity or etiology, even in the absence of contemporaneous medical evidence. Any tests or studies necessary to answer the questions below should be conducted, to include validity testing. The examiner should do the following: a. Conduct an examination of the Veteran, and based on that examination, any testing conducted, and review of the record, identify all current psychiatric disorders. b. The examiner is hereby advised that, to the extent deemed relevant and credible, lay statements (statements by laypersons) may support a diagnosis or an assessment of etiology as related to service. A lay statement may serve to establish the presence of disability at a prior time even in the absence of contemporaneous medical evidence. The examiner should explicitly state his or her conclusions regarding the Veteran's credibility for his statements supporting his claimed psychiatric disorder and its asserted origin in or relationship to service. Credibility may be impacted not only by such factors as inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, interest, bias, or self- interest, but also by a psychiatric disability itself, such as by impaired reality testing or delusion. c. The examiner should note and address conflicting psychological assessments within the record, with psychologists or social workers who have treated the Veteran for PTSD generally assessing PTSD, and the Veteran elsewhere assessed as suffering from major depressive disorder, as well as some past noted difficulties with agoraphobia, anger, panic, and cognitive disorder. d. If any alleged in-service stressor event is verified, then the examiner should carefully review the records within the claims file, including the Veteran's past statements and testimony, regarding this alleged in-service stressor. The examiner must determine whether the Veteran meets the diagnostic criteria for PTSD based on this in-service event, including whether the in-service event meets criteria as a stressor supportive of a diagnosis of PTSD for this Veteran. Then the examiner should provide an opinion whether it is at least as likely as not (at least 50 percent probability) that the Veteran has current PTSD causally related to an in-service stressor. e. Additionally, for each psychiatric disorder found to be present upon clinical examination, the examiner should provide an opinion whether it is at least as likely as not (at least 50 percent probability) that the disorder developed in service or is otherwise causally related to service; or, in the alternative, whether any such relationship between service and the current disability is unlikely (i.e., less than 50 percent probability). f. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. g. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner must provide a complete explanation as to why this is so. 7. Afford the Veteran an examination by an appropriate specialist to determine the current nature and severity of the Veteran's service-connected heart murmur. The claims file must be made available to the examiner for review in conjunction with the examination. In addressing the questions below, the examiner's opinion must be informed by a review of the Veteran's medical history and findings as documented in service and post-service records, to include any prior examinations or treatments. To the extent credible and medically supportable, other evidence, including lay statements, may be used to support a diagnosis or an assessment of severity or etiology, even in the absence of contemporaneous medical evidence. Any tests or studies necessary to answer the questions below should be conducted. The examiner should do the following: a. The examiner is advised that while multiple heart conditions are identified or diagnosed within the clinical record, only a heart murmur is currently service connected. The Veteran is asked to address the extent of the heart murmur. If other heart or cardiovascular disabilities are differentiable from the heart murmur in terms of etiology, physiology, and symptoms, then these other disabilities should not be included in the examiner's assessment of the nature and severity of the heart murmur. Any disability that cannot be differentiated in its etiology, physiology, or symptoms from the heart murmur should be included as part of the examiner's assessment of the nature and severity of the heart murmur. Findings and conclusions of the examiner differentiating or not differentiating other heart or cardiovascular conditions (or other conditions not of the heart or cardiovascular system whose symptoms the Veteran has attributed to his service-connected heart murmur) should be explained in detail in the examination report. b. Note the Veteran's subjective assertions of disability and symptoms of disability, address whether these are due to the Veteran's heart murmur, or due to other causes. Also address the degree to which these assertions are credible based on their support and/or contradiction by other evidence of record, including past clinical records and current clinical findings. The examiner is advised that to the extent these subjective assertions are found credible and attributable to the service-connected heart murmur, they may serve to support the examiner's assessments of the heart murmur. c. The examiner must explicitly address observed and clinical findings supporting or not supporting symptoms of disability. d. A rationale must be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 8. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter(s) sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 9. Thereafter, readjudicate the remanded claims de novo. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). _________________________________________________ L. M. BARNARD 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) (2012).