Citation Nr: 1400149 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-34 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder not otherwise specified (NOS). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1965, including service in the Republic of Vietnam from May 1965 to June 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2012, the Veteran presented testimony at a Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the case in February 2013 for additional notice and a VA examination. The case has since been returned to the Board for appellate review. A review of the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal. However, a review of the Veteran's Virtual VA claims file reveals treatment records from the Huntington VA Medical Center (VAMC) dated from September 2004 to October 2011. The RO has not reviewed these records in the November 2011 supplemental statement of the case (SSOC), and the Appeals Management Center (AMC) has not reviewed these records in the March 2013 SSOC. The majority of this additional evidence is either duplicative or irrelevant to the issue on appeal, but to the extent that any of this new evidence is relevant to the claim on appeal, the Board notes that the RO/AMC will have the opportunity upon remand to consider any records received since the July 2010 statement of the case. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND In the February 2013 remand, the Board directed the RO/AMC to issue a supplemental statement of the case (SSOC) if the benefit was denied. The Board indicated that the SSOC should include the amended version of 38 C.F.R. § 3.304(f). The AMC did issue a SSOC in March 2013, but it did not include the amended regulation. While the AMC did send the Veteran additional notice in February 2013, that letter also did not provide the Veteran with the amended version of 38 C.F.R. § 3.304(f). As such, there has not been substantial compliance with the February 2013 remand directives, and the case must be remanded again to ensure due process. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the case in February 2013 in order to afford the Veteran a VA examination to determine the nature and etiology of any and all psychiatric disorders. The Board indicated that the RO/AMC should provide the examiner with a summary of any verified in-service stressors. Following the remand, the Veteran was afforded a VA examination in February 2013, and the AMC provided that examiner with instructions as to stressors related to fear of hostile military or terrorist activity based on the Veteran's service in the Republic of Vietnam. However, there is no indication that the February 2013 VA examiner was provided with a summary of the Veteran's verified May 1965 stressor related to an ammunition dump explosion at Bien Hoa Air Base. Moreover, the February 2013 VA examiner stated that the Veteran's stressor did not meet Criterion A of the DSM-IV-TR and was not related to his fear of the hostile military or terrorist activity. The examiner did not identify the stressor to which she was referring, but it appears that such a statement contradicts the finding of the RO and AMC that the Veteran had a verified stressor in May 1965, as well as fear of hostile military or terrorist activity that was consistent with the circumstances of his service. Thus, it is unclear whether the examiner had an inaccurate factual premise. In addition, the February 2013 VA examiner determined that there was no current diagnosis of any current psychiatric disorder. However, in reaching this conclusion she did not address the June 2009 positive PTSD screening, the July 2009 provisional diagnosis for PTSD at the Huntington VAMC, or the June 2010 VA examination with diagnosis for an anxiety disorder. Based on the foregoing, the Board finds that an additional medical opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with the amended version of 38 C.F.R. § 3.304(f) in a notice letter. 2. The RO/AMC should also request any outstanding VA treatment records. This request should include records from the Huntington VAMC since October 2011 and the Logan Outstation Vet Center since May 2009. 3. The RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any and all current psychiatric disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and assertions. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders other than PTSD. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including his stressors therein. In reviewing the Veteran's mental health history, the examiner should note the June 2010 VA examination report containing a diagnosis of an anxiety disorder. With respect to PTSD, the RO/AMC should provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. The examiner should note that the Veteran's mental health history includes a June 2009 positive PTSD screening and a July 2009 provisional diagnosis for PTSD at the Huntington VAMC. The examiner should also note that the Veteran had verified service in Vietnam from May 1965 to June 1965, which exposed him to stressors related to the fear of hostile military or terrorist activity. There is also a verified stressor of a May 1965 ammunition dump explosion at Bien Hoa Air Base. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of the amended version of 38 C.F.R. § 3.304(f). The appellant 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 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). _________________________________________________ J.W. ZISSIMOS 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).