Citation Nr: 1514664 Decision Date: 04/06/15 Archive Date: 04/21/15 DOCKET NO. 13-13 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2014) for left leg post tourniquet syndrome. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for PTSD and denied entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for left leg post tourniquet syndrome. The Detroit RO has jurisdiction over the Veteran's claims. The issue of whether the Veteran is competent to directly receive VA compensation benefits was raised by the record in a May 2010 Report of General Information form, but appears to have not been addressed 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 AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran has raised multiple alleged in-service stressors that may have been documented, including an incident of personal assault, and has provided approximate dates of some incidents. Efforts to obtain credible supporting evidence, however, are not documented in the claims file. Cf. M21-1MR, Part IV, Subpart ii.1.D.14.f. The Veteran does not appear to have been provided legally required notice with respect to substantiating a claim for PTSD based on in-service personal assault, pursuant to 38 C.F.R. § 3.304(f)(5). The Veteran has alleged that he was recommended for a "Driving Citation Award" coincident to one of his reported stressors. While there is no evidence of such award in the record, it is unclear whether a complete copy of his service personnel records has been obtained. Evidence shows that the Veteran began undergoing psychological treatment in approximately December 1983, and he has provided portions of a narrative summary of a December 1983 psychological evaluation. A complete copy of these mental health records remains outstanding. See 38 C.F.R. § 3.159(c) (2014). Once all available evidence has been associated with the claims file, a new VA PTSD examination is warranted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also 38 C.F.R. § 3.304(f)(3) (2014). In the report of a January 2011 VA arteries and veins examination, the VA examiner opined that the Veteran's diagnosed post tourniquet syndrome was a known risk of surgical procedures requiring tourniquets. The examiner did not, however, provide an opinion with respect to whether a reasonable health care provider would have considered the development of post tourniquet syndrome, under the Veteran's particular circumstances, to be an ordinary risk of the treatment rendered. Cf. Schertz v. Shinseki, 26 Vet. App. 362 (2013). Additionally, it appears that a complete copy of the surgical consent form signed by the Veteran, in association with his February 2009 surgery, has not been associated with the claims file. 38 C.F.R. § 3.159(c) (2014). Accordingly, the case is REMANDED for the following action: 1. Ensure that a complete copy of the Veteran's service personnel records, to specifically include any reference to a "Driving Citation Award," is associated with the claims file. 2. Provide the Veteran with a letter notifying him of the information and evidence required to substantiate a service connection claim for PTSD based on in-service personal assault. In particular, the notice must advise the Veteran that evidence from sources other than his service records and evidence of behavior changes may constitute credible supporting evidence of claimed in-service stressors. 3. Obtain a complete copy of VA treatment records associated with the Veteran's February 2009 left knee surgery, to specifically include his signed consent form. 4. After obtaining required authorization, obtain records associated with the Veteran's psychological treatment beginning in approximately December 1983, to specifically include a complete copy of the December 1983 psychological evaluation narrative summary. Obtain any additional identified mental health treatment records. 5. Attempt to verify the Veteran's alleged stressors that may have been documented, to specifically include the alleged incident of personal assault, pursuant to VA's Adjudication Procedure Manual, M21-1MR. 6. Thereafter, schedule the Veteran for a new VA mental health examination with a psychiatrist or psychologist. The examiner should indicate that the claims file, including this REMAND, was reviewed. All necessary studies and tests should be conducted. The examiner must determine whether the Veteran meets the criteria for a diagnosis of PTSD, or any other current psychiatric disorder, or whether he has met proper diagnostic criteria for any such disorder. If the examiner determines that he does not meet the criteria for PTSD, as previously diagnosed, the examiner should opine whether the prior diagnoses were made in error or the disability is now in remission. The examiner should specifically address the December 2009 and April 2011 psychological report provided by the Veteran's private psychologist, R. J. O., Ph.D. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder had its onset during the Veteran's active service or is related to an in-service disease, event, or injury, to include any specific reported stressors. If PTSD is diagnosed, the examiner should specifically identify the stressors upon which such diagnosis is based. If the diagnosis is based on an in-service personal assault the examiner should state whether there is evidence of behavior changes in response to the stressor. The examiner must provide reasons for all opinions, addressing the relevant medical and lay evidence. 7. Obtain a new VA opinion from an orthopedic specialist, if possible, with respect to whether a reasonable health care provider would have considered the development of post tourniquet syndrome, under the Veteran's particular circumstances, to be an ordinary risk of the specific left knee surgery performed in February 2009. The examiner is reminded that to be an event not reasonably foreseeable, the development of post tourniquet syndrome does not need to be completely unforeseeable or unimaginable. Cf. 38 C.F.R. § 3.361(d)(2). In determining whether the development of post tourniquet syndrome was reasonably foreseeable in this case, the examiner should consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. The examiner should indicate that the claims file, including this REMAND, was reviewed. The examiner should provide reasons for all opinions. 8. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. 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 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).