Citation Nr: 1338486 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-36 590 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, anxiety and a panic disorder. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1993 to January 1994. This appeal to the Board of Veterans' Appeals (Board) initially arose from a December 2005 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for PTSD. In September 2010, the Board, inter alia, remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional development. After accomplishing further action, the AMC continued to deny the claims, and returned these matters to the Board for further appellate consideration. As noted above, in the December 2005 rating decision, the RO denied service connection for PTSD. However, given the evidence of record (including diagnoses of depressive disorder, anxiety and panic disorder) the Board has recharacterized the issue on appeal as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals an Informal Hearing Presentation submitted by the Veteran's representative in October 2013. As a final preliminary matter, the Board notes that the Veteran submitted an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) appointing the North Carolina Division of Veterans Affairs as his power of attorney (POA) in October 2012. This document also served to revoke his previous designation of the Veterans of Foreign Wars of the United States as his POA. The Board recognizes this change in representation. For the reasons expressed below, the claims on appeal are being remanded to the RO, via the AMC, in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action on the claims for service connection for PTSD and an acquired psychiatric disorder other than PTSD are warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he suffers from a psychiatric disorder as a result of his experiences aboard the U.S.S. Denver while stationed outside of Mogadishu. Specifically, he has alleged that his friend, Miranda, had been killed in Mogadishu, that he witnessed one sailor, Patterson, being burned with cooking grease when the ship hit a wave and that he was "knocked out twice" during a typhoon in the South China Sea. The Board notes that a November 2005 RO Memorandum made a formal finding that the Veteran's reported stressors were unverifiable. However, the Veteran subsequently provided additional information regarding his stressors, including providing the approximate dates of the incidents and the names of involved individuals. As such, on remand, an attempt should be made to verify the reported stressors, including the death of his friend in Mogadishu, the burning of his friend aboard the ship and being injured during in a typhoon. Accordingly, the RO should undertake any necessary development to attempt to verify the Veteran's alleged stressors related to his service aboard the U.S.S. Denver, to specifically include through the U.S. Army Joint Services and Records Research Center (JSRRC) and any other source(s), as appropriate. Any additional action necessary for independent verification of any reported verifiable stressors, to include follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating evidence leads to negative results, the RO should notify the Veteran of this fact, explaining the efforts taken, and describing further action (if any) to be taken. The Board is aware that the RO must limit requests to JSRRC to periods of no more than 60 days. However, the RO may be required to submit multiple requests to JSRRC covering a larger period of time, in order to satisfy VA's duty to assist. 38 C.F.R. § 3.159(c) (2013). Additionally, the Board notes that VA outpatient treatment records reflect a diagnosis of PTSD, which the Veteran attributed to his military service. The Board also notes the June 2009 opinion by a VA psychiatrist that the Veteran's PTSD was "not service-connected" as his symptoms could not be directly related to the identified VA stressor of "serving aboard the U.S.S. Denver and experiencing high winds and strong currents off the coast of Somalia in January 1994." However, the psychiatrist did not address the Veteran's other reported non-combat stressors. Moreover, with regards to the Veteran's claim for an acquired psychiatric disorder other than PTSD, the Board notes that a VA psychiatric etiological opinion was obtained in November 2011. The examiner provided an etiological opinion as to the Veteran's diagnosed depressive disorder, cognitive disorder and alcohol dependence. However, the examiner did not provide an etiological opinion as to the Veteran's other acquired psychiatric disorders which were diagnosed during the appellate period, to include anxiety, a mood disorder and a panic disorder. See, e.g., McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of the existence of a current disability for the purpose of a grant of service connection is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Hence, the RO should arrange for the Veteran to undergo VA mental health examination, by a psychiatrist or psychologist, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to obtaining further medical information in connection with these claims, to ensure that the record is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As for VA records, the claims file reflects that the Veteran had been receiving treatment for his various disabilities from the VA Medical Center (VAMC) in Black Hills, South Dakota and that records from that facility dated through July 2009 are associated with the file; however, more recent records may exist. In addition, the Veteran has relocated to another state since July 2009 and it is not clear whether he continues to receive VA treatment. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain all records of pertinent treatment from the Black Hills VAMC or other VA facility (since July 2009) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Black Hills VAMC (or any other VA facility at which the Veteran receives treatment) all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated since July 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159 should be obtained. All records and responses received should be associated with the claims file. If any records sought are not obtained, the Veteran should be notified of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses have been associated with the claim, undertake necessary action, to particularly include contact with the U.S. Army and Joint Services Records Research Center (JSRRC) (and other appropriate source(s)), to attempt to independently verify the occurrence of the Veteran's reported stressors as detailed by the Veteran in his December 2008 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Trauma. Such stressors include the death of his friend (Miranda) in Mogadishu, witnessing one sailor (Patterson) being burned with cooking grease when the ship hit a wave, and that he was "knocked out twice" during a typhoon in the South China Sea. Any additional action necessary for independent verification of the Veteran's stressor(s), to include follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating records leads to negative results, the RO should notify the Veteran and afford him the opportunity to respond. The RO should also follow up on any additional action suggested by JSRRC. 5. After all available records and/or responses from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA mental psychiatric examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, along with all pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies, to include psychological testing, if deemed warranted, should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly indicate whether the Veteran currently suffers from PTSD. In rendering a determination as to whether the diagnostic criteria for PTSD are met, the physician is instructed that only identifiable stressor(s) related to established combat service, and/or non-combat stressor(s) that have been verified, may be considered for the purpose of determining whether exposure to such in-service event has resulted in PTSD. If a diagnosis of PTSD is deemed appropriate, the physician must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the established stressor(s). Regardless of whether PTSD is diagnosed, with respect to each diagnosed acquired psychiatric disability other than PTSD, to include anxiety and a panic disorder, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to any established in-service stressor(s). The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).