Citation Nr: 1607787 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 09-19 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. When this case was before the Board in June 2013, it was remanded for additional development. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The RO denied the Veteran's claims of entitlement to service connection for PTSD and atopic dermatitis, claimed as a skin condition, in an October 2007 rating decision. The Veteran's June 2008 notice of disagreement relates only to the RO's denial of his PTSD claim. However, in June 2014 the Veteran submitted a copy of one page of the RO's October 2007 decision with the Veteran's hand-written notes describing how his skin condition may have been caused by sun exposure in Vietnam, and an additional statement discussing his current skin cancer diagnosis. It is unclear whether the Veteran was attempting to reopen his claim for service connection for a skin disability. This issue 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. 38 C.F.R. § 19.9(b) (2015). REMAND Although further delay is regrettable, the Board is of the opinion that additional development is required before the Veteran's claim is decided. The Board first notes that the record contains conflicting medical evidence as to whether the Veteran has had PTSD or any other acquired psychiatric disorder during the pendency of his claim. In September 2005, the Veteran's private physician, Dr. E.W. H., diagnosed the Veteran with chronic PTSD and chronic major depression. He noted the Veteran's report that while serving as a military policeman in Vietnam, he was tasked with crossing the Mekong River in a boat to file a report on a gunship that had blown up. While crossing the river, the boat overturned and the Veteran, who had on heavy military equipment, almost drowned. In addition, he noted that the Veteran had seen a Vietnamese soldier blown up by a grenade. He stated that these events left the Veteran with a fear of water and a fear of falling asleep. The Veteran reported nightmares once or twice per week, waking up in panic and sweats, which lasted ten to fifteen minutes, and flashbacks twice per week. The physician stated that the Veteran startled easily and was hypervigilant, did not socialize with anyone, and had a severely impaired recent memory. He stated that the Veteran's working memory was 75% impaired, and that anger, sadness and fear came upon him 40% of the time, indicating that his prefrontal cortex was dysfunctional. The Veteran reported that he felt depressed 50% of the time, with low energy and little interest in things, that he had crying spells frequently, angered and agitated easily, and felt helpless at times. The physician stated that due to his PTSD, the Veteran was unable to sustain social and work relationships. The Board notes that from September 2005 to February 2009, the Veteran was treated by Dr. E.W. H. sixteen times. On each occasion, the doctor noted the Veteran's symptoms and continued his medications. The Veteran was afforded a VA examination in March 2014, and the examiner determined that the Veteran did not have PTSD or any other psychiatric disorder. Specifically, the examiner found that the Veteran did not meet the full symptom criteria for a diagnosis under the DSM-5 because he did not describe negative alterations in cognitions and mood associated with the traumatic event or arousal symptoms associated with the traumatic event. In addition, the examiner stated that there was no evidence that the Veteran had clinically significant functional impairment as a result of his reported symptoms, which is required for any mental disorder diagnosis under the DSM-5. In this regard, the examiner noted that the Veteran had worked successfully as an insurance agent for 20 to 25 years, and although he reported nightmares and night sweats, as well as feeling unhappy and hating people at his job in recent years, he did not describe any functional impairment resulting from these symptoms or feelings. In addition, the examiner noted that the Veteran had described numerous instances in which he was able to maintain effective interpersonal relationships, including with his church, wife, children, and grandchildren. The examiner also administered the Structured Inventory of Malingered Symptomatology (SIMS) test, a screening measure comprised of psychiatric and cognitive conditions that are not typical experiences of persons with actual psychiatric disorders or cognitive conditions. This test provides a total score to be used for detection of symptom exaggeration and endorsement of atypical symptom patterns across a variety of settings. The examiner stated that the Veteran obtained a total score higher than the recommended cut-off score, meaning that the Veteran endorsed a high frequency of symptoms that are highly atypical and inconsistent in patients with genuine psychiatric disorders. Due to the conflicting nature of the medical evidence described above, the Board finds that an additional examination and opinion, by a panel of two VA psychiatric examiners, is warranted. The Board also notes that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f) (2015). Regarding the incident in which he almost drowned on the Mekong River, the Veteran has stated that the crossing took place in a remote area where combat had taken place a short time before, and that he was in full combat uniform and carrying his M-16 rifle and extra ammunition. He stated that he crawled onto the shore on a side of the river where there were no other Americans, and that he saw 20-30 men in "black pajamas," some of whom were carrying rifles, and that he thought all the guns were pointing at him until a chief or leader spoke to the men and they went away. He has further stated that his nightmares have at times been violent and have included the Vietnamese enemy. Regarding the incident in which he saw a Vietnamese soldier blown up by a grenade, the Veteran reported to the March 2014 examiner that a drunken South Vietnamese "regular" at a bar emerged from the bar with a grenade with the pin pulled out. The Veteran stated that he went behind a jeep but saw the man explode and pieces of him blew all over the road. The Veteran's statements raise the question of whether his claimed stressors are related to a fear of hostile military or terrorist activity, and thus whether their occurrence may be established by his lay testimony alone, pursuant to 38 C.F.R. § 3.304(f). As such, the examiners who perform the examination requested in this remand are instructed to provide an opinion as to whether the Veteran has PTSD due to stressors related to a fear of hostile military or terrorist activity. On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by a panel of two examiners with sufficient expertise, who have not previously provided an examination or proffered an opinion in this case, to determine the nature and etiology of any acquired psychiatric disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiners. Any indicated tests and studies should be performed. Based on a review of the Veteran's pertinent history and the examination results, the examiners should identify all acquired psychiatric disorders that have been present during the period of the claim. A diagnosis of PTSD due to the in-service stressors claimed by the Veteran should be confirmed or ruled out. If the examiners determine that PTSD has not been present during the period of the claim, they should explain why a diagnosis of PTSD is not warranted. If PTSD is diagnosed, the examiners should identify the elements supporting the diagnosis and specifically address whether the disorder is due, at least in part, to a fear of hostile military or terrorist activity in service. With respect to each acquired psychiatric disorder, other than PTSD, that has been present during the period of the claim, the examiners should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service. The examiners must discuss and consider the Veteran's competent lay statements and assume such statements are credible for purposes of the requested opinions. Specifically, in forming an opinion, the examiners must consider and discuss the Veteran's statements that his boat overturned on the Mekong River in an area where combat had taken place a short time before, that he was in full combat uniform and carrying his M-16 rifle and extra ammunition, that when he crawled onto the shore he saw 20-30 men in "black pajamas," some of whom were pointing rifles at him, until they went away after their leader spoke to them, and that his nightmares have at times been violent and have included the Vietnamese enemy. The examiners must also consider and discuss the Veteran's statements that he saw a South Vietnamese "regular" at a bar explode all over the road after the soldier emerged from the bar with a grenade with the pin pulled out. The examiners must provide the rationale for all proffered opinions. If the examiners are unable to provide any required opinion, they should explain why. If the examiners cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. 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. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5109B (West 2014). _________________________________________________ Shane A. Durkin 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) (2015).