Citation Nr: 1328364 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-38 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from January 1971 to August 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 2008, a statement of the case was issued in August 2009, and a substantive appeal was received in September 2009. Pursuant to an October 2012 remand by the Board, a Board hearing was conducted in July 2013. In its November 2008 rating decision, the RO denied the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) (also claimed as depression and anxiety disorder). Case law now provides that 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 the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the Veteran's psychiatric claim on appeal as one of entitlement to service connection for an acquired psychiatric disability, however diagnosed. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The issue of entitlement to nonservice-connected pension has been raised by the record (specifically, in a December 2008 informal claim, followed by a January 2011 formal claim, and most recently at the July 2013 hearing), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Acquired Psychiatric Disability The Veteran contends that he has suffered from symptoms of an acquired psychiatric disability ever since the occurrence of two stressor events which allegedly took place during his military service: (1) a parachuting accident during which he hit his head upon jumping out of the aircraft; and (2) a parachuting accident during which his equipment failed during descent. In August 2008 statements, he claimed that both of these stressor events took place while stationed with his unit as a paratrooper at Fort Bragg, North Carolina, with the first event occurring between July and September 1971, and the second event occurring between September 1971 and January 1972. The Veteran's DD Form 214 notes that he received a Parachute Badge in service. On a March 2010 VA Form 21-527 (page 8), the Veteran reported that he was currently incarcerated at the Virginia Department of Corrections and was currently being treated for both PTSD and depression. All available updated treatment records pertaining to the Veteran should be obtained from that facility. In January 2011 and February 2011, VA was notified that the Veteran had been released from prison in November 2010. A June 2011 VA treatment record noted that the Veteran was "presently hospitalized at Mt. Vernon [H]ospital in Virginia after an overdose." All available treatment records pertaining to the Veteran should be obtained from that facility. At his July 2013 hearing, the Veteran testified with regard to his in-service stressors and ongoing psychiatric symptomatology. He also testified that he was currently receiving treatment for PTSD at the VA Outpatient Clinic in Fort Belvoir, Virginia. Any ongoing VA medical records are constructively of record and should be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). After completion of the above, the Board believes it appropriate to afford the Veteran another VA mental disorders examination in order to determine whether any acquired psychiatric disability is related to service. Hepatitis C The Veteran's STRs are negative for any complaints, findings, diagnosis, or treatment of hepatitis C. However, an April 1972 STR documented that the Veteran complained of vomiting blood, and an impression of gastritis was rendered. Postservice VA laboratory testing in November 2004 reflected that the Veteran tested positive for hepatitis C. However, in an April 2008 statement, he alleged that he was first diagnosed with hepatitis C in 1997 or 1998 and "was informed at that time that this could have occurred during my time of service." (Later, at his July 2013 hearing, he testified that he was first diagnosed with hepatitis C in 1996.) All available treatment records pertaining to the Veteran's hepatitis C diagnosis and treatment should be obtained. In a July 2013 informal hearing presentation, the Veteran's representative noted that vomiting of blood is a typical symptom of hepatitis C, and argued that it would have been impossible to diagnose the Veteran with hepatitis C in service because hepatitis C was not officially recognized until the late 1980s. At his July 2013 hearing, the Veteran testified that he first noticed symptoms (which have now been related to his hepatitis C) when he was in service at Fort Bragg, and that such symptoms included severe coughing, fatigue, listlessness, lack of energy and drive, severe headaches, and vomiting blood. He also testified that he saw a private physician for his physical symptoms shortly after his release from service, but he was sure that this physician was deceased by now. In light of the above, the Veteran should be afforded an appropriate VA examination in order to determine whether his hepatitis C is related to service (including the documented complaint in service in April 1972 of vomiting blood). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should advise the Veteran that he can submit "buddy statements" from his fellow soldiers containing verifiable information to support his claim, to specifically include the claimed parachute incidents. 2. After securing necessary releases, the RO/AMC should obtain all treatment records pertaining to the Veteran from the following facilities: the Virginia Department of Corrections for psychiatric treatment; Mt. Vernon Hospital in Virginia for psychiatric treatment; and any provider who has diagnosed or treated him for hepatitis C since his discharge from service. If any records are unavailable, then a negative reply is requested. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. The RO/AMC must make arrangements to obtain all outstanding (not already contained in the claims file) VA medical records of treatment the Veteran has received for his claimed disabilities, including from the VA Outpatient Clinic in Fort Belvoir, Virginia, as well as any additional ongoing records from the VA Medical Center in Washington, DC. If any records requested are unavailable, the reason must be explained for the record. 4. After completion of the above, the RO/AMC should schedule the Veteran for a VA mental disorders examination by a psychiatrist or psychologist to determine the nature and likely etiology of any current acquired psychiatric disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. If possible, psychological testing for PTSD should be conducted. After examining the Veteran and reviewing the claims file, the examiner should offer a response to the following question for each diagnosed acquired psychiatric disability: a) Is it at least as likely as not (a 50% or higher degree of probability) that such acquired psychiatric disability was manifested during service? Please address any pertinent symptoms/behavior documented in service records. b) Is it at least as likely as not (a 50% or higher degree of probability) that such acquired psychiatric disability is causally related to any incident of the Veteran's military service? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 5. After completion of Instructions #1-3 above, the RO/AMC should schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his hepatitis C. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should offer a response to the following question: Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's hepatitis C is causally related to any incident of his military service (including the documented complaint in service in April 1972 of vomiting blood)? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 6. After completion of all of the above, the RO/AMC should review the expanded record and readjudicate the issues on appeal. If any of the issues on appeal remain denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ ALAN S. PEEVY 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) (2012).