Citation Nr: 1418161 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 11-30 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 1992, from April 1994 to September 1997, and from March 2003 to May 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Although the appealed June 2011 rating decision did not address a claim for any psychiatric disorders other than PTSD, the Board has expanded the issue to include all psychiatric disorders, per Clemons, as noted on the title page of this decision. The Veteran testified before the undersigned Veterans Law Judge in a video conference hearing in January 2014. A transcript of that hearing is associated with the record. The record before the Board consists of the Veteran's paper claims file and electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). REMAND The Veteran contends that he experienced stressful wartime events during service while serving as a Heavy Wheeled Vehicle Mechanic. Specifically, he has reported that while deployed to Turkey in 1991, he served as a driver on missions to Iraq, where he was exposed to vehicle fires, burning bodies, children being run over by convoys, and artillery fire, and he witnessed a vehicle in a convoy roll over, causing the driver to be ejected and seriously injured. He also related that there were times when the convoys ahead of his convoy were ambushed. The Veteran testified that his psychiatric symptoms began during his July 1988 to July 1992 period of service and have continued since that time. The Veteran's VA Forms DD 214 and his service personnel records confirm that his military occupational specialty was Heavy Wheeled Vehicle Mechanic. Further, a September 1991 memorandum from Headquarters Logistics Support Unit in Silopi, Turkey, indicates that the Veteran was deployed to Iraq for 4 days in August 1991 during Operation Provide Comfort in support of the Logistic Support Unit mission. In light of this fact, the Veteran's service as a Heavy Wheeled Vehicle Mechanic, and his credible contentions regarding in-service exposure to wartime events, the Board concedes the Veteran's in-service exposure to the claimed in-service stressors. During a June 2011 contract VA psychiatric evaluation, the examining psychologist found that the Veteran did not meet the DSM IV diagnostic criteria of PTSD because he did not have sufficient PTSD symptoms and the severity of traumatic exposure was mild. However, the examiner rendered an Axis I diagnosis of anxiety disorder not otherwise specified. VA treatment records dated in October 2012 indicate that a PTSD screen was negative. The Board notes that the June 2011 VA examiner did not opine as to whether the Veteran's diagnosed anxiety disorder is related to service, to include any reported stressors therein. A VA examination to address this medical question is necessary. See 38 U.S.C.A. § 5103A. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Prior to any examination, all outstanding, pertinent medical records should be obtained and associated with the claims file or Virtual VA. The Board also notes that the service treatment records (STRs) in the claims file relate only to the Veteran's second and third periods of active service (April 1994 to September 1997 and March 2003 to May 2003) which appear to have been received directly from the service department; there is no indication the RO has pursued STRs relating to the first period (July 1988 to July 1992) from any other sources, including the National Personnel Records Center (NPRC). Given the importance of STRs, the Board finds the originating agency should attempt to obtain the missing STRs before the claim for service connection is adjudicated. Finally, additional evidence (a lay statement from the Veteran's mother) was added to the Veteran's claims file in February 2014, subsequent to the issuance of the August 2013 Supplemental Statement of the Case. This new evidence has not been reviewed by the RO in conjunction with the issue on appeal, and the appellant has not waived RO consideration of the additional evidence. Accordingly, the originating agency must be given the opportunity to review this evidence before the Board can enter a decision. 38 C.F.R. § 20.1304(c) (2013). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. The RO or the AMC should submit a request to the NPRC for a copy of the Veteran's STRs relating to his first period of active service (July 1988 to July 1992). The RO or the AMC should pursue the missing records until the records are obtained or until the NPRC states in writing that no further records are available. 3. Then, the RO or the AMC should arrange for the Veteran to be scheduled for a VA examination by an examiner with sufficient expertise to assess the etiology of any acquired psychiatric disorders currently present or present at any time during the period of the claim. The claims file and any pertinent evidence in Virtual VA or VBMS that is not contained in the claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. A notation to the effect that this record review took place should be included in the examination report. Based upon the review of the Veteran's pertinent history, examination of the Veteran, and with consideration of sound medical principles, the examiner should express an opinion with respect to each acquired psychiatric disorder that has been present during the period of the claim as to whether it is at least as likely as not (50 percent or more probable) that the disorder is etiologically related to the Veteran's active service, to include the reported stressors that occurred therein. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian with respect to his history of in-service stressors. The examiner must explain the rationale for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should again review the record and re-adjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ Shane A. Durkin 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).