Citation Nr: 1340632 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-08 582 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to February 1975. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2007 RO rating decision which, inter alia, denied service connection for PTSD. In January 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2008. In April 2009 and March 2010, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; transcripts of those hearings are of record. In August 2010, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. In June 2011, the Board remanded the PTSD claim to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further evidentiary development. At that time, the Board finally decided service connection claims for diabetes mellitus, hypertension, neuropathy of the upper and lower extremities, and colon cancer; hence, those claims are no longer on appeal. Regarding the characterization of the claim remaining on appeal, the record reflects that the Veteran has been diagnosed with PTSD in the VA clinic setting and holds additional diagnoses such as dysthymic disorder as well as mixed anxiety/depression. Notably, PTSD is an anxiety disorder. See 38 C.F.R. § 4.130. Thus, the Board has recharacterized the PTSD claim to encompass all currently diagnosed acquired psychiatric disorders. 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 documents in the Virtual VA paperless claims processing system includes an Appellant's Brief by the Veteran's representative at the National level which has not been associated with the paper claims file. Otherwise, there are no additional, relevant documents in addition to those reflected in the paper claims file pertinent to the present appeal. For reasons expressed below, the claim on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on this matter. The Veteran claims that he manifests PTSD as a result of exposure to stressors experienced aboard the USS Dubuque (LPD-8). He describes being deployed to the Republic of Vietnam as part of mine-sweeping missions wherein, he asserts, he witnessed civilian boats being detonated by mines and being called to general quarters during enemy air attacks while stationed in the Gulf of Tonkin in "1974." See Transcript of April 2009 DRO hearing, p. 5; Transcript of August 2010 Board hearing, pp.5, 6. He also recalls that one soldier fell off the ship during operations. See Transcript of April 2009 DRO hearing, p. 4. However, he reports being unable to recall specific places or dates. See Transcript of April 2009 DRO hearing, p. 7. Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). An amendment to the PTSD regulation during the pendency or the appeal provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 75 Fed. Reg. 39843-39852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). For purposes of 38 C.F.R. § 3.304(f)(3), "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The primary effect of the amendment of § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor related to the Veteran's "fear of hostile military or terrorist activity." In such instances, in lieu of verifying any reported, in-service stressor(s), a medical opinion concerning the adequacy of the stressor(s), and the relationship between the stressor(s) and a veteran's symptoms, is obtained from a VA, or VA contracted, psychiatrist or psychologist. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). As a result of Board remand directives, the RO/AMC has associated with the claims file the Veteran's recent VA clinic records which reflect an Axis I diagnosis of PTSD in July 2010, which is presumed to conform to DSM-IV. The examiner identified "past combat experience" as a psychosocial stressor. See generally Hernandez-Toyens v. West, 11 Vet. App. 379, 381-82 (1998) (holding that, under the prior 3rd edition of the DSM, an Axis IV assessment listing a military experience represented an "etiologically significant psychosocial stressor" which provided a plausible connection between the current condition and active service). In November 2007, the RO determined that the Veteran provided insufficient information to verify whether the Veteran's claimed stressors could be corroborated with the U.S. Army and Joint Services Records Research Center (JSRRC). However, after viewing the Veteran's allegations in light of his service personnel records (SPRs) and taking into account his recollection difficulties, the Board finds that there is sufficient information of record to request further research by JSRRC. The Veteran's SPRs reflect that he was assigned to the USS Dubuque in September 1972. A declassified chronology of the USS Dubuque's movements in 1972 reflects that, on December 10, 1972, she underwent special operations in the Gulf of Tonkin, which may match the Veteran's description of coming under enemy fire in the Gulf of Tonkin given his difficulties remembering specific dates. Thus, the Board finds that JSRRC should be contacted to obtain any deck logs and any other historical information regarding the special operations performed by USS Dubuque in the Gulf of Tonkin beginning on December 10, 1972. Additional information reflects that, from February to June 1973, the USS Dubuque participated in mine clearing operations in Haiphong Harbor as part of Operation End Sweep. The Board has attached research to the record reflecting that Operation End Sweep took place after the Paris Peace Accord of 1973. There is no reference to enemy attacks. As reflected above, the Veteran served in the Gulf of Tonkin just prior to the cessation of hostilities. Although the Veteran's VA treating physicians have generally indicated that the Veteran's PTSD is related to combat activities, there is no medical evidence or opinion addressing whether fear associated with exposure to hostile military activities has resulted in the Veteran's PTSD. Moreover, given the expanded claim on appeal, an opinion as to whether any diagnosed psychiatric disability other than PTSD is medically-related to service-to include to any such fear-would helpful in resolving this aspect of the appeal, as well. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, once the requested research by the JSRRC has been completed, the RO should arrange for the Veteran to undergo a VA 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 (as the original claim will be considered on the basis of the evidence of record. 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 the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should undertake appropriate action to obtain and associate with the claim file all outstanding, pertinent records. As regards VA records, the Veteran receives ongoing treatment for PTSD at the VA Medical Center (VAMC) in Columbia, South Carolina. The most recent VA treatment records associated with the paper claims file are dated in July 2011, and the Virtual VA file does not include any additional VA treatment records. Thus, there appears to be relevant VA treatment records outstanding. 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 must obtain from the Columbia VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated since July 2011, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the expanded claim on appeal. The RO's letter to 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) (West Supp. 2013) (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 (2013). 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 (West 2002); 38 C.F.R. § 3.159 (2013). 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 expanded claim on appeal. Adjudication of the claim should include consideration of all evidence associated with the paper claims file and electronic folder s since the RO's last adjudication of the claim for service connection for PTSD. Accordingly, this matter is hereby REMANDED for the following actions: 1. Obtain from the Columbia VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, since July 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the expanded claim 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 this claim within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Contact the JSRRC and request research into the following: a) any deck logs and any other historical information regarding the special operations performed by the USS Dubuque in the Gulf of Tonkin beginning on December 10, 1972, to include whether the USS Dubuque was in an operations area subject to enemy aircraft attacks and whether there are any references to a seaman having fallen overboard; and b) documentation concerning when and why the USS Dubuque earned the Vietnam Gallantry Cross Unit Citation. 5. Thereafter, the RO should once again determination whether any of the Veteran's claimed PTSD stressors have been corroborated. 6. After all records and/or responses received have been associated with the claims file, the research by JSRRC has been completed, and the RO has determined whether any of the claimed stressors have been corroborated, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at an appropriate VA medical facility. The entire claims file, to include a complete copy of this REMAND, along with relevant copies of any 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 necessary tests and studies (to include psychological testing, if deemed warranted)) should be accomplished (with all findings made available to the psychiatrist or psychologist prior to the completion of his/her report), and all clinical findings should be reported in detail. The RO should specifically inform the VA physician which stressors, if any, have been corroborated. The examiner should clearly indicate whether the Veteran meets the diagnostic criteria for PTSD. If so, the examiner should render an opinion, based on examination of the Veteran, any testing results, and review of the record-to include any statements or other documents referencing the Veteran's fear associated with hostile military activity-as whether such fear is sufficient to have resulted in current PTSD. If so, the examiner should address whether the Veteran's PTSD symptoms are related to such stressor (or a stressor which the RO has adjudicated as corroborated, if any). If the examiner diagnoses any current psychiatric disability/ies other than PTSD, with respect to each such diagnosed disability, 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 service-to include fear associated with hostile military or terrorist activities. In providing this opinion, the examiner is requested to compare the Veteran's stressor related information with the historical information of record regarding the circumstances of service for the USS Dubuque. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 8. 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. See Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the expanded claim for service connection for an acquired psychiatric disorder, to include PTSD, in light of all pertinent evidence (to particularly included all that added to the paper and electronic claims files since the last adjudication of the claim for service connection for PTSD) and legal authority. 10. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC 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 benefit 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. 2013). _________________________________________________ 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) (2013).