Citation Nr: 1522394 Decision Date: 05/27/15 Archive Date: 06/11/15 DOCKET NO. 13-28 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Appellant represented by: Michael Viterna, Attorney at Law ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1998 to November 1999 and from July 2003 to May 2004. These matters come before the Board of Veterans' Appeals (Board) from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lousiville, Kentucky. Original jurisdiction over the claim now resides with the RO in Detroit, Michigan. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record, i.e., that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim. Accordingly, the Board has expanded the issue as indicated on the title page. The issue of entitlement to service connection for an acquired psychiatric disorder , to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for PTSD was denied in an August 2008 rating decision and the denial was confirmed in a February 2010 statement of the case; the Veteran did perfect an appeal to the Board and the decision became final in February 2011. 2. Evidence received since the February 2010 statement of the case relates to an unestablished fact necessary to substantiate a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The February 2010 statement of the case is final; new and material evidence has been received and the claim seeking service connection for an acquired psychiatric disorder, to include PTSD, is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is reopening the Veteran's service connection claim and remanding the claim for further development. Accordingly, any error committed with respect to either the duty to notify or the duty to assist need not be discussed further at this time. II. New and Material Evidence Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence need not address each previously unproven element of a claim to be sufficient to reopen the claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Evidence received since the February 2010 statement of the case includes a letter dated in March 2013. In the letter, Dr. S.L., the Veteran's outpatient psychiatrist in the PTSD Clinic in Ann Arbor indicated she had been treating the Veteran since September 2012 for PTSD and depression. In addition, further treatment records show continuing treatment for PTSD. This evidence is "new" as it was not considered by the RO prior to February 2010. It is also material because originally the RO did not consider whether any diagnosed psychiatric disorder might be related to the Veteran's experiences in the military. In addition, the additional treatment records indicate a diagnosis of PTSD; the finding of a lack of diagnosis was one of the reasons the claim was initially denied. Based on the foregoing, the Board finds that there is new and material evidence sufficient to reopen the Veteran's service connection claim. Therefore, the appeal, to this extent only, is granted. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened, and to this extent only, the appeal is granted. REMAND Reasons for Remand: To obtain the Veteran's Social Security Administration (SSA) disability records, to obtain VA treatment records, to obtain potentially outstanding private treatment records and to schedule a new VA examination. In February 2008, the Veteran filed a claim for service connection for PTSD as due to experiences while deployed during his second period of active duty. In a statement in support of claim, the Veteran explained that on February 16, 2004, he was out on a convoy to get supplies. He indicated that while standing guard with the vehicles, there was a group of children picking up pieces of candy about 100 meters away. He stated that all of a sudden there was a blast so loud it made his ears ring and the next thing he remembers is seeing the body parts of the children falling out of the sky. He indicated the incident haunted his dreams almost nightly. He also indicated that he was about to board a plane for leave in Qatar and insurgents began shelling the military base. He indicated after the plane took off, it "leveled out all of a sudden" and "dropped and barrel rolled to the left real hard." He found out later that insurgents had fired rockets at the plane. He also indicated that his unit shared a base with Jordanians and they had a field hospital. The Veteran reported seeing sick and dead women, men and children coming through the gates to seek help at the hospital. In March 2004, the Veteran underwent a Post-Deployment Health Assessment. It was noted the Veteran had served in Afghanistan and in Uzbekistan between July 29, 2003 and April 16, 2004. In the assessment, the Veteran indicated that he had not seen anyone wounded, killed or dead during the deployment. He also reported that during the deployment he never felt that he was in great danger of being killed. He denied most psychiatric symptoms except for feeling numb or detached from others, activities or his surroundings. Nightmares were denied. The Post-Deployment Health Care Provider Review indicated the Veteran's health in general was "good." It was indicated that the Veteran did intend to seek counseling or care for his mental health, although concerns about possible exposure or events during the deployment that might have affected the Veteran's health were not discussed. The Veteran initially sought mental health treatment in February 2008. In a February 2008 Mental Health Outpatient Record, the Veteran was diagnosed with PTSD by a nurse practitioner based on the symptoms he described and his indication these symptoms began soon after returning from deployment. In the same month, he met with a social worker and received another diagnosis of PTSD. In April 2008, it was noted he was seen at the Huntington VA Medical Center (VAMC) for an initial visit and that he was attending treatment in Prestonsburg for PTSD symptoms, to include anxiety, isolation, nightmares and flashbacks. A staff psychiatrist signed off on the indicated diagnoses of PTSD and panic disorder. In May 2008, VA requested information regarding the Veteran's claimed stressor. It was indicated the Veteran was assigned to the 406th Core Support Battalion (406th CS BN) at Uzbekistan between July 29, 2003 and April 15, 2004 with a military operational specialty (MOS) of motor transport operator. Defense personnel records indicated that the 406th CS BN deployed to Uzbekistan and a terrorist incident occurred on March 31, 2004. More specific information as to the attack the Veteran described was sought. The Veteran did not provide further information and a Formal Finding of a lack of information required to verify stressors in connection to the veterans claim for PTSD was made. In August 2008, a Formal Finding on the Unavailability of Service Treatment Records was made regarding the Veteran's period of active service between July 7, 2003 and May 21, 2004. The Veteran was notified of this finding. In an August 2008 rating decision, the RO acknowledged the Veteran's service between July 29, 2003 and April 14, 2004 in Southwest Asia/Uzbekistan and that he served in an imminent danger pay area as indicated on his DD-214. The RO indicated that receipt of imminent danger pay did not constitute stressor verification; however, it might, in combination with other information support combat exposure. The RO denied the claim based on a finding that the available evidence was insufficient to confirm that the Veteran engaged in combat and the medical evidence did not confirm a link between current symptoms and a confirmed in-service stressor. The Veteran appealed and indicated ongoing treatment for PTSD at the Chillicothe VAMC and at the VA Outpatient Clinic in Lorain, Ohio. Records from the Chillicothe VAMC indicate that the Veteran was admitted for 2 weeks for hospitalization. Marijuana abuse was diagnosed as was a history of a brief psychotic episode, possibly substance induced. Rule out PTSD was also noted. In a January 2010 record, it was noted that the Veteran was receiving Social Security Administration (SSA) disability benefits. In February 2010, the RO continued denial of the claim in a statement of the case. The Veteran did not file an appeal and in February 2011, the decision became final. In June 2011, the Veteran filed another claim and was scheduled for a VA examination. In September 2011, the Veteran underwent a VA examination. The Veteran indicated he often felt nervous and did not like to be in crowds. In addition, he noted having flashbacks. The examiner felt that such "flashbacks" were best "accounted for by cannabis abuse." The Veteran reported isolation and stated that he had nightmares about being overseas. He indicated being near a field hospital where he would "see dead babies and dead bodies lying by the side of the road." He indicated that he could "not get past it" and could not "forget it." The Veteran indicated trouble sleeping. He indicated feeling jittery and like his body was "not right." The Veteran reported anger issues that he began to experience within the last year and a half. The examiner explained that the Veteran's mood had been negatively affected by substance abuse and to attribute his symptoms to anything other than cannabis dependence, the Veteran "would have to be abstinent for an extended period of time." It was also noted based on the MMPI-2 test that the Veteran was over-reporting his symptoms and functional impairment. The examiner noted that the terrorist attack in Uzbekistan was a stressor that met Criterion A for the diagnosis of PTSD because it was related to the Veteran's fear of hostile military or terrorist activity. The examiner indicated that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria. He diagnosed Cannabis Dependence. Based on the September 2011 examination report, the RO continued the denial of the Veteran's claim in an October 2011 rating decision. Upon review of the record, the Board finds that the September 2011 VA examination was not adequate because it did not take into account or consider the VA treatment records dating from February 2008 that show treatment for psychiatric symptoms and include assessments of PTSD. Notably, the Veteran's psychiatric treatment records do not center on substance abuse and the Veteran has been consistent in his contention that he feels anxiety, has trouble sleeping, isolates and suffers from recurrent nightmares. Additionally, in a letter dated in March 2013, Dr. S.L., the Veteran's outpatient psychiatrist in the PTSD Clinic in Ann Arbor indicated she had been treating the Veteran since September 2012 for PTSD and depression. On remand, the Veteran should be scheduled for a VA examination with a psychologist or psychiatrist different than the one who performed the September 2011 examination. The claims file must be made available for review, to include all records from the VA Medical Centers in Prestonsburg, Kentucky, Huntington, West Virginia, Ann Arbor, Michigan, Chillicothe, Ohio, Cleveland, Ohio and the Outpatient Clinic in Lorain, Ohio. In addition, there is evidence the Veteran might have sought private psychiatric treatment at the Amherst Community Hospital. See VA September 2011 VA Examination Report. The Veteran should be given the opportunity to provide authorization for VA to seek any relevant private treatment records or to provide them himself. In addition, there is evidence that the Veteran is receiving SSA disability benefits. The United States Court of Appeals for Veterans Claims has held that, where VA has notice that a Veteran is receiving disability benefits from SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA benefits and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). Evidence indicates that the Veteran seeks the most treatment for psychiatric concerns; he may be receiving SSA disability benefits for a mental condition and therefore, such records should be obtained on remand. As there is evidence of another psychiatric disability besides PTSD now in the record, the examiner should provide an opinion as to whether any diagnosed psychiatric disability is at least as likely as not related to the Veteran's military service or is more than likely due to some other cause or factor. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include any records from VA Medical Centers in Prestonsburg, Kentucky, Huntington, West Virginia, Ann Arbor, Michigan, Chillicothe, Ohio, Cleveland, Ohio and the Outpatient Clinic in Lorain, Ohio. 2. Ask the Veteran to provide authorization for release of any private treatment pertaining to psychiatric treatment that are not already of record, to include any records from Amherst Community Hospital. Request any records properly identified by the Veteran. 3. Request the Veteran's Social Security records for association with the claims file. Such records must include, but are not limited to, a copy of the Veteran's original award letter, documentation showing the disability(ies) upon which the award was based, and all medical records associated with the original award, as well as those associated with the continuing award. Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2014). 4. After records are obtained to the extent available, schedule the Veteran for a VA examination with a different licensed psychologist or psychiatrist from the examiner who provided the September 2011 examination in order to ascertain the nature and etiology of any diagnosed psychiatric disabilities. The claims file should be made available for review, and the examination report should reflect that such review occurred. The examiner should clarify whether the Veteran has a diagnosis of PTSD that conforms to the DSM-IV criteria and whether he has any other acquired psychiatric disorders other than PTSD. Thereafter, the examiner should provide an opinion as to whether any diagnosed acquired psychiatric disorder, to include PTSD, is causally or etiologically related to active duty, to include the Veteran's reported experiences in Southwest Asia and Uzbekistan where terrorist activity was confirm while his unit was deployed to that country. Note: 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs