Citation Nr: 1631757 Decision Date: 08/10/16 Archive Date: 08/23/16 DOCKET NO. 12-00 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to March 1968, which included service in the Republic of Vietnam and Thailand. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Since the issuance of the last RO adjudicative action that considered the Veteran's claim, namely the October 2011 statement of the case, he submitted additional evidence accompanied by a waiver of initial RO consideration, which allows the Board to consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2015). Furthermore, as the Board is remanding the Veteran's claim for further development and subsequent readjudication, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review this evidence on remand. This appeal has been processed using the paperless, electronic Virtual VA (VVA) and Veterans Benefit Management System (VBMS) systems. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran is seeking service connection for an acquired psychiatric disorder, claimed as PTSD, which he asserts results from his in-service traumatic experiences. While a VA examination conducted in October 2009 failed to produce a diagnosis of PTSD or any other psychiatric disorder, an October 2011 VA psychiatric evaluation reflects a diagnosis of PTSD. Similarly, a private psychiatric evaluation conducted in February 2012 also reveals a diagnosis of PTSD. Furthermore, both reports reflect that such diagnosis is based upon the Veteran's reported service-related stressors. In this regard, in statements received in October 2008 and February 2009, the Veteran reported the details of three such traumatic experiences, which he indicated occurred during his periods of service in Thailand and Vietnam. The RO accordingly requested that research be conducted to corroborate his claimed stressors. However, the response reflects that research was conducted regarding only two of the three reported stressors. (The research failed to corroborate either of these two stressors.) Furthermore, the October 2011 VA psychiatric evaluation and February 2012 private psychiatric evaluation reflect the Veteran's reports of six additional service-related PTSD stressors (the details of which are outlined below), and no research has been undertaken to corroborate these stressors. Accordingly, related corroborative efforts must be conducted on remand. Thereafter, the Veteran should be afforded a new VA psychiatric examination to determine whether he has an acquired psychiatric disorder that is attributable to a corroborated stressor, or to a generalized fear of hostile military activity. Additionally, the Veteran should be given an opportunity to identify any records relevant to his claim that have not yet been obtained, to include any treatment records from the private physician, Dr. Fliesser, who conducted the February 2012 evaluation. Thereafter, all identified records, to include updated VA treatment records dated from October 2011 to the present, should be obtained. Finally, the Veteran's claim should be readjudicated on the entirety of the evidence, to include all evidence received after the issuance of the October 2011 statement of the case. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal, to include any private treatment from the psychiatrist who performed the Veteran's February 2012 psychiatric evaluation, Dr. Fliesser. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records dated from October 2011 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Send a letter to the Veteran explaining the need for corroboration of his newly reported stressors, as transcribed in his October 2011 VA psychiatric evaluation and February 2012 private psychiatric evaluation, and requesting the details, dates, and location of each of the following: * The Veteran's report of being part of a ground recovery team for downed aircraft, including near the DMZ, during which he saw dead and/or burning bodies; * The Veteran's report of being surrounded by Viet Cong as he was trying to repair an aircraft for take-off and had to get back out of the aircraft to complete the repairs while under fire; * The Veteran's report of being assigned to first air commandos for A1E's in Northern Thailand and frequently being shot upon, as he was located near Laos on the Mekong River; * The Veteran's report of being bombed by the Viet Cong, with the bombs narrowly missing him; * His report of watching Napalm being dropped by his Air Force unit; and * His report that several members of his unit committed suicide. 3. After obtaining any information the Veteran provides concerning these in-service stressors, contact the JRSSC or any other appropriate federal records repository and request that research be undertaken to corroborate the aforementioned six stressors, as reported during his 2011 VA and 2012 private psychiatric evaluations, as well as his reported stressor of being in a direct line of fire during bus ride from the city to NKB air base, in Thailand in January 1968 (as reported in an October 2008 statement and referenced in the June 2009 deferred rating decision). 4. After completion of the above development, and after all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of any currently manifested acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. In this regard, the AOJ should specifically include documentation as to whether the Veteran's claimed stressors have been corroborated. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria that have been present any time since he filed his claim in October 2008, including, but not limited to PTSD. The Board notes that the DSM-5 is currently in use; however, as the Veteran's case was certified to the Board in January 2012, the DSM-IV applies to his claim. In this regard, the final rule adopting the DSM-5 does not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and, if so, whether such diagnosis is the result of a verified in-service stressor(s) (the examiner should consult the claims file to in order to determine whether the Veteran's stressors have been verified) and/or due to his fear of hostile military activity coincident with service in Thailand and Vietnam. If the examiner determines the Veteran does not meet the DSM-IV criteria for PTSD, the examiner must reconcile such a determination with the remainder of the evidence of record, to include the October 2011 VA treatment record and February 2012 private psychiatric evaluation report reflecting diagnoses of PTSD. For each currently-diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher probability) that any such disorder is related to the Veteran's military service. In offering any opinion, the examiner must consider the Veteran's lay statements regarding his experiences in military service, as well as the October 2011 VA treatment record and February 2012 private psychiatric evaluation report reflecting diagnoses of PTSD based on the Veteran's military service. The examiner must provide a detailed rationale for all opinions expressed. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received after the issuance of the October 2011 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).