Citation Nr: 1609117 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 14-24 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, schizophrenia and schizoaffective disorder. REPRESENTATION Veteran represented by: John E. Walus, Esq. ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had active service from September 3, 1974 to October 17, 1974. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran presented testimony at a hearing before RO personnel. A copy of the hearing transcript is associated with the claims file and has been reviewed. The Board notes that the Veteran filed a claim of entitlement to service connection for schizophrenia in August 2007 and the medical evidence of record reflects diagnosis of such. The Board further observes that the medical evidence of record indicates diagnoses of PTSD and depression. The Court of Appeals for Veterans Claims (Court) has held that when a Veteran, who is a lay person, is not competent to diagnose his specific psychiatric disability. Therefore, VA must consider the Veteran's psychiatric symptoms regardless of the label attached to them to warrant service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, in light of the Court's holding in Clemons, the Board has expanded the Veteran's claim for schizophrenia as reflected on the title page. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board initially notes that during a VA mental health examination dated April 2005, the Veteran reported that he is currently in receipt of Social Security Administration (SSA) benefits. The Board notes that there is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran's claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file. As these records may be directly relevant to the issue before the Board, on remand, any determination pertinent to the appellant's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The Veteran contends that he has an acquired psychiatric disorder that is related to his military service, in particular from being assaulted by his fellow soldiers. Specifically, he reports that he was assaulted by 5 or 6 soldiers who hit him with a rifle butt and raped him. Although the Veteran's service treatment and personnel records are absent a report of an assault by the Veteran, 38 C.F.R. § 3.304(f)(5) provides several examples of sources other than the Veteran's service records that can constitute credible supporting evidence necessary to establish the occurrence of an in-service stressor based on personal assault. Examples include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; statements from family members, roommates, fellow service members, or clergy; and evidence of behavior changes such as a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; and unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). This regulation further provides that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran of these examples and allowing her either the opportunity to furnish this type of evidence or to advise VA of potential sources of such evidence. A review of the claims file shows that the Veteran was not adequately advised pursuant to 38 C.F.R. § 3.304(f)(5) in any of the provided VCAA letters. As such, complete notification pursuant to 38 C.F.R. § 3.304(f)(5) must be accomplished on remand because this regulation so mandates. Additionally, the Board observes that the Veteran reported at the October 2012 DRO hearing that prior to his period of military service, he suffered from a learning disorder that he appeared to contend was symptomatic of a psychiatric disorder. It therefore appears that the Veteran contends that his acquired psychiatric disorder alternatively pre-existed his military service and was aggravated during service. Although the Veteran's August 1974 enlistment examination is absent report of an acquired psychiatric disorder, his service personnel records reveal that he was discharged due to mental inaptitude. Moreover, an October 1974 report by the Aptitude Board reveals that the Veteran's general qualifications do not warrant retention in the service, and that the Veteran's condition existed prior to entry into naval service and has not been aggravated by service. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." The Veteran was provided a VA psychological examination in March 2010. The examiner considered the Veteran's report of being raped while in the military and that he was hit on the head with a rifle by another soldier as well as the service personnel records noting the Veteran's discharge from service based on mental inaptitude. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with schizoaffective disorder, depressed, with psychotic features and concluded that he could not resolve the question of whether the Veteran's current acquired psychiatric disorder was the result of or aggravated by military service without resort to mere speculation. Pertinently, the United States Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board also observes that L.H., Ph.D., reported in a letter dated November 2010 that the Veteran's experiences of trauma while serving in the Marines has contributed significantly to his occupational difficulties and that he is currently unable to support himself through work. However, it is unclear as to whether Dr. L.H. attempted to opine that the Veteran's in-service trauma is related to his current acquired psychiatric disorder. In any event, Dr. L.H. did not provide a rationale for her conclusion and did not address the service personnel records noting the Veteran was discharged due to mental inaptitude and that this condition preexisted his military service. Therefore, the Board finds her opinion to be of minimal probative value in evaluation of the Veteran's service connection claim. There is no other opinion of record that addresses the etiology of the Veteran's current acquired psychiatric disorder, or whether there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder preexisted military service and, if it did, whether there is clear and unmistakable evidence that the acquired psychiatric disorder was not aggravated by service. See 38 U.S.C.A. §§ 1111, 1153 (West 2014), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2015); Wagner, supra; VAOPGCPREC 3-2003. In light of the ambiguities above, the Board finds that an opinion for such must be obtained. See 38 U.S.C.A. § 5103A(d) (West 2014); Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notification letter that completely satisfies 38 C.F.R. § 3.304(f)(5). This letter accordingly shall set forth all examples listed in this regulation of sources other than service records that can constitute credible supporting evidence necessary to establish the occurrence of an in-service stressor based on personal assault. A copy of the letter shall be documented in the claims file. 2. Request the SSA to provide copies of any records pertaining to the Veteran's application for SSA disability benefits, to include any medical records obtained in connection with the application. Any materials obtained should be associated with the Veteran's VA claims folder. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for an appropriate VA examination with a psychiatrist or psychologist to determine the nature and etiology of his acquired psychiatric disorder. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must provide an opinion as to the following: a. Identify all current diagnosed acquired psychiatric disorders. The examiner's attention is directed to diagnoses of PTSD, depression, psychotic disorder, schizophrenia and schizoaffective disorder. See, e.g., VA treatment records dated April 2004, August 2009, November 2010, February 2011, and October 2011. The examiner should reconcile the diagnosis/diagnoses found on examination with the other diagnoses of record. b. State whether it is clear and unmistakable that the Veteran had an acquired psychiatric disorder prior to his entry onto his period of active duty. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder. Clear and unmistakable means obvious, manifest and undebatable. If it is determined that the Veteran's current acquired psychiatric disorder pre-existed his period of active military service, please state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing acquired psychiatric disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder. c. If it is determined that the Veteran's acquired psychiatric disorder did not pre-exist his period of his active military service, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current acquired psychiatric disorder is etiologically related to his period of active military service. The examiner should consider the Veteran's statement of psychiatric symptoms such as depression and memory loss since his discharge from service as well as statements of record from the Veteran's wife and brother also indicating such. d. The examiner should also opine whether the evidence indicates that a personal assault occurred in service and, if so, whether the Veteran has a diagnosis of PTSD that is related to the in-service personal assault. The examiner should indicate in his/her report that the electronic claims file was reviewed. The underlying reasons for all opinions expressed must be provided. 4. Thereafter, readjudicate the claim currently on appeal. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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).