Citation Nr: 1341968 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-16 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), anxiety disorder, and depression. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to March 1971, including service in the Republic of Vietnam from February 1969 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2013, the Veteran testified at a hearing before the undersigned Veteran's Law Judge at the RO. A transcript of the hearing has been associated with the Veteran's claims file. In June 2013, the Veteran submitted new evidence directly to the Board, along with a waiver of initial AOJ review of this evidence. The Board will therefore consider this evidence below. 38 C.F.R. § 20.1304(c) (2013). In his March 2008 claim for benefits, the Veteran contends he is entitled to service connection for PTSD. In an April 2008 claim for benefits, the Veteran contends he is entitled to service connection for PTSD with depression. The Board has recharacterized his claim more generally as one of entitlement to service connection for a psychiatric disorder to include PTSD, MDD, anxiety disorder, and depression. See Clemmons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). 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 that his current psychiatric disorder is related to his military service. Specifically, he claims that his current symptoms are a result of his fear of hostile military or terrorist activity while serving in combat in Vietnam. A VA medical examination is needed to determine the nature and etiology of the Veteran's asserted psychiatric disorder. VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the Court of Appeals for Veterans' Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon, 20 Vet. App. at 83. In the present case, the Veteran has not been afforded a VA examination addressing his current service connection claim for a psychiatric disorder. As an initial matter, the current medical evidence of record documents that the Veteran has been diagnosed with and treated for PTSD, MDD, anxiety disorder, and depression. Specifically, in a June 2013 letter, the Veteran's Licensed Independent Clinical Social Worker (LICSW) reported that the Veteran meets all criteria for a diagnosis of both chronic and severe PTSD, and that he was diagnosed with PTSD and MDD following his first appointment with her. Additionally, private treatment records dated August and September 2012 show the Veteran was diagnosed with "anxiety disorder due to general medical conditions," and was prescribed valium and diazepam as treatment. VA treatment records dated June 2008 additionally diagnose the Veteran with anxiety and depression, and further note that he received a positive result on a PTSD screen. Additionally, the Veteran has provided competent reports that he experienced several stressful events while serving in Vietnam, including running people over while riding in a convoy and hearing them scream, being sent to recover a disabled vehicle and witnessing several fellow service members who had been killed, hung from trees, and dismembered, and witnessing fellow service members being shot and killed. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Furthermore, the Veteran has reported that, since returning from Vietnam in February 1970, he has experienced difficulty sleeping, feelings of anxiety, hypervigilance, nightmares, substance abuse, resentment of authority, thoughts of suicide, and difficulty establishing and maintaining relationships. In this regard, the Board notes that the Veteran is competent to report his symptoms and their continuity since service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The evidence of record is sufficient to establish that an event, injury, or disease occurred in service for purposes of the second factor for determining whether a medical examination is necessary. In addition, this evidence also indicates that the Veteran's psychiatric disability may be associated with service, given that the Veteran has credibly stated that he has suffered such symptoms since service, he is currently diagnosed with PTSD, MDD, and anxiety disorder, the record indicates some continuity of his symptoms, and medical evidence links his symptoms to his combat service. Thus, the evidence meets the low threshold for the third factor set forth in McLendon, 20 Vet. App. at 83. Although the evidence of record establishes that the Veteran may have been exposed to stressful events while serving in Vietnam, and indicates that the Veteran's persistent anxiety, sleeping disturbances, nightmares, difficulty maintaining relationships, and other symptoms may be associated with his military service, to date, he has not been afforded a VA examination assessing whether he has a psychiatric disorder that was caused by or incurred during military service. In this regard, the Board acknowledges that, in a June 2013 letter, the Veteran's treating LICSW provided the opinion that the Veteran has been and is permanently and very negatively altered by his Vietnam experience and meets the criteria to be diagnosed with chronic and severe PTSD in accordance with the criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders, IV (DSM-IV). Significantly, however, because the LICSW is not a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted), she is not qualified to provide an opinion confirming that (1) the Veteran's claimed stressors are adequate to support a diagnosis of PTSD, and/or (2) that his symptoms are related to the claimed stressors. See 38 C.F.R. § 3.304(f)(3) (2013). As such, the Board finds that remand is necessary to provide the Veteran with a VA examination and obtain an appropriate medical opinion. See McLendon, 20 Vet. App. at 81; see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records from June 2009 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the claims file. 2. Contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for a psychiatric disorder to include PTSD, MDD, anxiety, or depression, to include his treating Licensed Independent Clinical Social Worker. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. After completing the above development, schedule the Veteran for an examination conducted by a VA psychologist or psychiatrist to determine the nature and etiology of any psychiatric disorder to include PTSD, MDD, anxiety disorder, and depression. The claims file, including a copy of this Remand, must be provided to the examiner, the examiner should review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner is additionally asked to accomplish the following: (a) Identify all psychiatric disorders that have existed at any time since the Veteran filed his claim of entitlement to service connection in March 2008. (b) If PTSD is found, the examiner must state whether the in-service stressors relied upon to support the diagnosis are the cause of the Veteran's PTSD. (c) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that any identified psychiatric disorder that the Veteran has had since he filed his current claim had onset during his active service or was caused by his active service. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After ensuring that the requested actions are completed, the RO must readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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).