Citation Nr: 1338431 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-29 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, in pertinent part, denied the claim for service connection for PTSD. The United States 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the holding in Clemons, the Board has recharacterized the issue of entitlement to service connection for PTSD to the broader issue of entitlement of service connection for an acquired psychiatric disorder, to include PTSD, as is reflected on the cover page. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. 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 contends he has PTSD as a result of his experiences as a combat medic in Vietnam. He states he witnessed the deaths of multiple soldiers when a land mine hit his unit in 1969. Service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), i.e., the diagnosis must conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); (2) medical evidence of a link between current symptomatology and a claimed, in-service stressor; and (3) credible supporting evidence that the claimed, in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2) (2013). If the evidence establishes that the veteran engaged in combat and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1). Here, the Veteran's in-service stressor is conceded. Specifically, VA requested the Veteran's personnel records and attacks on his unit were confirmed. There is conflicting evidence in the record as to whether the Veteran has a diagnosis of PTSD that complies with the DSM-IV criteria. In September 2009, the Veteran was afforded a VA examination with a licensed clinical psychologist. The examiner conceded that the Veteran "does meet the criteria for having been exposed to a significant traumatizing event" explaining that he "was in combat as a medic and was exposed to potential injury, and witnessed comrades being wounded and killed." Following an in-depth consideration of the Veteran's symptoms, the examiner diagnosed the Veteran with "Mood Disorder NOS, improved with treatment." The examiner noted that the Veteran's current symptoms included depression, lack of motivation and significant anxiety. He recognized present day stressors including financial concerns and living situation instability. The examiner concluded that the Veteran did not "fit the diagnosis for having Post Traumatic Stress Disorder because he does not present with significant symptoms of re-experiencing traumatic events, and he does not present with symptoms of avoidance." In November 2010, the Veteran met with a different VA licensed clinical psychologist for treatment at the Grand Junction VA Medical Center. The Veteran's interpersonal relationships, job history and military duties, including his stressful experiences in Vietnam, were discussed. The Veteran completed a PTSD Checklist (PCL) Assessment. As part of the assessment, the Veteran indicated that he felt very upset when something reminded him of the stressful experiences, that he avoided activities or situations because they reminded him of the stressful experiences, that he had a loss of interest in activities he used to enjoy, that he felt distant or cut off from others, and that he felt emotionally numb and hypervigilent. Based on the assessment, the examiner concluded that the Veteran "appears to clearly suffer from and meet the diagnosis of the PTSD disorder." He diagnosed the Veteran with PTSD. The September 2009 and November 2010 VA opinions conflict and such conflict is unresolved. Even if the Board were to weigh the conflicting opinions and decide the evidence reflects a current diagnosis of PTSD adequate to support entitlement to service connection, there is no medical opinion of record regarding whether there is a link between the Veteran's recently diagnosed PTSD and his conceded in-service stressor. Based on the foregoing, the Board finds that the evidence is insufficient to make a decision on the claim and that the Veteran should be scheduled for another VA examination to determine the current nature and etiology of any psychiatric diagnoses, to include PTSD. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c),(d) (2013) (VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim). VA's duty to assist also includes obtaining relevant medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Prior to any examination, an attempt should be made to obtain copies of any outstanding records of pertinent mental health treatment. The Board notes that records through March 22, 2013 appear in the Virtual VA paperless claims processing system. Copies of any VA medical records not already associated with the claims file should be obtained for review. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall request and obtain any outstanding VA medical records, including records from March 2013 to the present, and associate them with the claims file. 2. Upon completion of the above, the RO/AMC should schedule the Veteran for an appropriate psychiatric examination with a VA licensed clinical psychologist or psychiatrist to identify the precise nature of any and all psychiatric disorders that the Veteran may have, and to determine whether any diagnosed disorder(s) is/are related to service. Appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Based on examination findings, as well as a review of the claims file, including treatment records, all lay statements of record and a copy of this remand, the examiner is requested to render opinions as to the following: a) Does the Veteran currently have PTSD under DSM-IV standards? b) If a diagnosis of PTSD is made, the examiner should indicate whether it is at least as likely as not (50 percent or greater degree of probability) that PTSD manifested due to the Veteran's experiences as a combat medic in Vietnam as opposed to any stressful incidents that took place after service. c) If the examiner finds that the Veteran does not have PTSD, but rather has a different psychiatric disorder, or that the Veteran has another psychiatric disorder in addition to his PTSD, the examiner should determine if it is at least as likely as not (50 percent or greater degree of probability) that the Veteran's non-PTSD, psychiatric disorder(s) first manifested during active service or developed due to an aspect of service. The term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. For purposes of the opinion being sought, the examiner should do each of the following: * render an opinion assuming that the in-service stressors occurred as stated (the Veteran's combat experience is conceded) * include review of the most recent VA treatment records on the Virtual VA paperless claims processing system that do not appear in the paper claims file * consider the Veteran's statements in support of his claim and those of his mother and son from October 2010 If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). A complete rationale must be given for all opinions and conclusions expressed. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 3. When the development requested has been completed, the case shall again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran shall 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 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).