Citation Nr: 1342836 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-24 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio 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 HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from November 1962 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2009 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which in pertinent part, denied service connection for PTSD. Although the RO framed the issue on appeal as entitlement to service connection for PTSD, a review of the record indicates that the Veteran was also diagnosed with having a history of panic disorder, anxiety disorder not otherwise specified (NOS) and depression NOS. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized the issue as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim for a psychiatric disorder in keeping with the Court's holding in Clemons. The Veteran provided testimony during a hearing before the undersigned at the RO in June 2013. A transcript is of record. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. A remand is required to attempt to provide notice to the Veteran, and to provide the Veteran with an adequate examination. The Veteran alleges that he experiences PTSD as a result of his active duty service while serving in Vietnam. The Veteran's personnel records reflect that he served in the Republic of Vietnam (RVN) from January 1966 to January 1967. In an October 2008 statement, the Veteran recounted several traumatic in-service experiences during his period of service in RVN and recalled one particular incident in which his unit, while operating in an area northwest of Cu Chi, began firing several rounds at a village mistakenly believing it to be hostile territory and a refuge for members of the Viet Cong, only to find out afterwards that it was actually "friendly village." The Veteran described witnessing the villagers attempt to escape and flee from the buildings after they were detonated, and stated that he was burdened "with extreme guilt" for his role in the damage and wreckage that took place that day. The Veteran also recounted how the location where his unit set up their campsite was subject to numerous firefights, and one particular section of the perimeter was exposed to firefights on a nightly basis. He also recalled the fear he felt when participating in firefights and described one particular episode wherein he was shot at while walking towards the area his Company Commander wished to position his tank. He also recalled witnessing a tank which held four of his close friends explode when a land mine buried in the road detonated as the tank passed over it. According to the Veteran, his friends survived the explosion, but one of his friends, Staff Sergeant (SSG) J.B., was injured and hospitalized as a result of incident. See October 2008 Statement of Veteran. In an effort to corroborate the Veteran's assertions regarding his in-service experiences, the RO contacted the U.S. Army and Joint Services Records Research Center (JSRRC), and provided information regarding the Veteran's unit and dates of service in Vietnam. In their response, the Defense Personnel Records Information Retrieval System (DPRIS) reviewed the Veteran's unit history and acknowledged that the Veteran's unit arrived in Cu Chi in March 1966, at which time it conducted a search and destroy operation from March 29 to April 4, 1966. The history report further documented that during 1966, battalion vehicles hit 75 enemy land mines and SSG J.B. was wounded and hospitalized as a result of wounds sustained during a search and destroy operation in April 1966. In the March 2009 rating action, the RO conceded the Veteran's in-service stressors. The Board agrees with this determination. During the pendency of the Veteran's appeal, VA regulations relating to stressor verification and service connection for PTSD changed. Specifically, 38 C.F.R. § 3.304(f)(3) went into effect on July 13, 2010. Under this amended regulation, if an in-service stressor involves fear of hostile military or terrorist activity, service connection for PTSD may be established if: a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD; the claimed stressor is consistent with the places and circumstances of the Veteran's service; and the Veteran's symptoms are related to the claimed stressor. See 38 C.F.R. § 3.304 (2013). Although the Board has conceded the Veteran's in-service stressors, the medical evidence of record is conflicting as to whether the Veteran has a current diagnosis of PTSD. Upon conducting a mental evaluation of the Veteran, the February 2009 VA examiner determined that the Veteran fulfilled the criteria for major depression and generalized anxiety disorder (GAD), and diagnosed the Veteran with said disorders. According to the examiner, the Veteran did not fulfill the criteria for PTSD at present. The examiner noted that although the Veteran had some thoughts about his services in Vietnam, he did not have any flashbacks, intrusive thoughts, or nightmares, and more likely than not did not have PTSD. The Board acknowledges a November 2005 VA treatment report which demonstrates that the Veteran exhibited PTSD symptoms, as well as results from the June 2009 and October 2009 PTSD screenings which were shown to be positive. Although the Veteran's more recent VA treatment records reflect a diagnosis of PTSD, it appears as though the VA treatment providers based this diagnosis on the Veteran's positive PTSD screenings. However, the Board notes that these were preliminary assessments based on his response to four questions, not an evaluation in which his medical history was reviewed and discussed and a mental examination was conducted. During several VA outpatient visits dated in May 2012 and September 2012, the VA treatment providers assessed the Veteran with "GAD vs PTSD" noting that the Veteran had been diagnosed with both these disorders in the past. However, there is no evidence to clearly link PTSD to the claimed stressors, and no VA psychiatrist, psychologist, or contract equivalent has confirmed that the claimed stressors are adequate to support the PTSD diagnosis. During the November 2011 VA outpatient visit, the Veteran reported to experience increasing nightmares regarding Vietnam and attributed these nightmares to the fact that one of his sons was currently serving in Iraq. During a May 2012 VA treatment visit, the Veteran reported to experience increasing nightmares, anxiety and depression since learning that one of his sons would soon be deployed to Afghanistan soon. In light of the conflicting medical evidence of record, as well as the more recent medical evidence which documents the Veteran's increasing psychiatric symptoms, the Board finds that the Veteran should be afforded another VA psychiatric examination to determine whether he has met the diagnostic criteria sufficient for PTSD, and if so, whether the evidence of record links the diagnosis of PTSD to the conceded stressors. Regarding the non-PTSD portion of the claim for service connection for a psychiatric disorder, during his hearing, the Veteran testified that he began experiencing psychiatric symptoms very soon after his separation from service, and has continued experiencing these symptoms since this time. See June 2013 Hearing Transcript, pp. 2-3. Review of the Veteran's VA and private treatment records reflect ongoing treatment for, and diagnoses of, anxiety disorder NOS, major depression, and a history of panic disorder with agoraphobia. Although the Veteran was afforded a VA examination in February 2009, and the VA examiner diagnosed the Veteran with having major depression and GAD, he did not provide an opinion as to whether either of these disorders were etiologically related to the Veteran's military service. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the inadequate medical opinion, the Board finds that on remand, another VA examination by an examiner who has reviewed all the medical records in this case and who will render an opinion as to the likelihood that a current psychiatric disorder had its onset during active service is necessary to decide the claim. In addition, the Board notes that during a January 2008 VA treatment visit, the Veteran reported that he had recently accepted Social Security Administration (SSA) benefits. When VA has notice that the Veteran is receiving disability benefits from the SSA and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996); 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002), 38 C.F.R. § 3.159(c)(2) (2013). Although the Veteran described these benefits as retirement rather than disability benefits, in light of the fact that the Veteran's claim is already being remanded for various reasons, for clarification purposes, VA should determine whether the Veteran is receiving SSA disability benefits. If so, VA should acquire a copy of the decision granting SSA disability benefits, as well as copies of the medical records used in the determination of benefits made to the Veteran by SSA. As this matter is being remanded for further development, the RO should also attempt to obtain any ongoing medical records pertinent to the Veteran's claim. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a corrective Veterans Claims Assistance Act of 2000 notification letter pertaining to the claim for service connection for an acquired psychiatric disorder, to include PTSD. 2. Request records of relevant psychiatric treatment that the Veteran may have received at the VA medical center (VAMC) in Columbus, Ohio since January 2013. Copies of such records which are available should be associated with the claims folder. 3. Contact SSA and determine whether the Veteran is currently receiving SSA disability benefits. If so, obtain a copy of the SSA decision awarding disability benefits to the Veteran, as well as the medical records relied upon concerning that determination. All such available documents should be associated with the claims file. All efforts to obtain these records should be fully documented, and SSA should provide a negative response if these records are not available. 4. After any additional records are associated with the claims file and/or scanned into the Virtual VA claims processing system, provide the Veteran with an appropriate mental health examination to determine the etiology of the his PTSD, GAD, major depression and any other diagnosed psychiatric disorder. Because this examination will partially be conducted under the new PTSD regulations, it must be conducted by a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be performed. The claims folder, a copy of all pertinent medical records on Virtual VA, and a copy of this remand must be made available to the examiner for review in conjunction with the examination. A complete explanation for any opinion expressed must be included in the examination report. If an opinion cannot be provided without resort to speculation, the examiner must provide supporting explanation for that statement. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's statements of record. Regarding the claim for a non-PTSD psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GAD, major depression, and any other currently diagnosed psychiatric disability is related to active service. The examiner must also address the Veteran's lay statements of ongoing psychiatric symptoms since service discharge. Regarding the claim for PTSD, the examiner must express an opinion as to whether the Veteran meets the criteria for PTSD contained in DSM-IV. If the examiner finds that the Veteran does not meet the criteria, then the VA medical records that provide diagnoses of PTSD must expressly be commented on. If the examiner finds that the Veteran meets such criteria, then the February 2009 VA psychiatric examination must be discussed. The examiner must provide an opinion as to whether PTSD can be related to the Veteran's conceded stressor or stressors to include, serving in the 1st Battalion, 69th Armor division and conducting a search and destroy operation while stationed in Cu Chi from March 29, 1966 to April 4, 1966; witnessing numerous battalion vehicles come in contact with enemy land mines; possibly witnessing his friend and fellow serviceman SSG J.B. become injured and hospitalized as a result of wounds sustained during a search and destroy operation; attacking a "friendly village" with the mistaken belief that it was hostile territory sheltering enemy soldiers; witnessing and being exposed to firefights on a nightly basis at his camp site; witnessing an army vehicle that was part of his unit explode as a result of a land mine explosion; destroying above-ground graves during the search and destroy missions; nearly killing a Vietnamese soldier by trying to run him over; witnessing the treatment of those severely wounded and viewing the bodies of those killed in Vietnam while hospitalized in Cam Ranh Bay for treatment of his malaria and; and the general fear and stress of constant exposure to combat activities while performing his military duties. Additionally, the examiner should provide an opinion as to whether the Veteran's conceded stressor or stressors are adequate to support a diagnosis of PTSD based on a fear of hostile military or terrorist activity during service, and whether his symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).