Citation Nr: 1640636 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 13-31 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include Posttraumatic Stress Disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2016, the Veteran testified at a Videoconference Hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. The Board has characterized the appeal as not requiring new and material evidence for reopening, as set forth on the title page. The claim adjudicated as a request to reopen is more appropriately characterized as a request for reconsideration, consistent with the provisions of 38 C.F.R. § 3.156 (c) (2015) as the Veteran submitted a service personnel record indicating a court martial for possessing alcohol in August 2010, after the initial February 2010 denial of his claim for PTSD. The Board notes that the issue on the title page is "service connection for an acquired psychiatric disorder" rather than PTSD as characterized by the RO. This is significant because the Court has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the Clemons' decision, the issue on appeal is not just limited to the Veteran's purported entitlement to service connection for PTSD, but also includes the various other psychiatric disorders to include major depressive disorder and an anxiety disorder that have been diagnosed as well. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, remand is required for further development. The Veteran alleges that he has PTSD due to in-service events and points to a December 1965 Captain's Mast for possessing alcohol as an indication of his mental state after finding a fellow shipmate stabbed. The Veteran initially indicated that the stabbing incident took place in January 1965. During the February 2016 hearing, the Veteran indicated that he thought the stabbing took place sometime between October 1964 and December 1964. In an October 2014 letter from the Veteran, he also submitted several other possible stressors, without a time frame or other specifics noted; the Veteran should be asked for more information concerning any stressors. Additionally, verification of the stabbing incident with the new time frame along with any other verifiable stressors must be completed, specifically requesting any relevant deck logs. Concerning the Veteran's claim for service connection for an acquired psychiatric disorder, the Veteran began psychiatric treatment in September 2007 at the VA Medical Center. A September 2007 treatment note indicates that the Veteran was suicidal right after he got out of the military, trying to crash his wife's car and being put in jail as he was drunk at the time. An October 2007 VA treatment note indicates that the Veteran has had nightmares since service; his diagnosis was major depressive disorder, rule out PTSD. An April 2008 behavioral assessment reiterated the Veteran's stressor statement of finding a person stabbed when he served on the Tombigbee. The Veteran was diagnosed with an anxiety state NOS, with the examiner noting that she was not convinced that the stressor reported rose to the level of stressor needed to meet Criterion A for PTSD. A June 2015 record from the Veteran's treating Physician's Assistant at the VA Medical Center indicates that he has PTSD, with no specific stressor indicated. The Board finds that the Veteran should be afforded a VA examination to determine if he has any current psychiatric disabilities which are related to service or any incident of service, to include any corroborated in-service incidents. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c)(4). Additionally, it's unclear as to whether all of the Veteran's VA treatment records, from September 2007, have been associated with the electronic claims file. On remand, those records as well as any ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). With regard to the Veteran's claim for service connection for an acquired psychiatric disorder, although the Veteran was provided with notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), that notice did not advise the Veteran of the elements of service connection generally for an acquired psychiatric disorder. Thus, the Veteran must be so notified on remand. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective VCAA notification letter which provides the required notice in response to his claim for service connection for an acquired psychiatric disorder. 2. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including all records from the Houston VAMC, not already associated, dating from September 2007 to the present. 3. Request the Veteran provide a time frame and additional details for any and all stressors he is claiming caused his PTSD. 4. Contact all appropriate records repositories, to include the National Archives and Records Administration requesting deck logs, for the U.S.S. Tombigbee dating from October 1964 to December 1964 in an attempt to verify the Veteran's claimed stressor of a murder on-board taking place during that time period. Additionally, attempt to verify through official sources any other stressors adequately identified by the Veteran. 5. After completion of the above actions to the extent possible, the Veteran should be afforded a VA examination by a psychiatrist or a psychologist to determine the nature and etiology of all acquired psychiatric disorders present during the period of this claim. The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed. A diagnosis of PTSD under the DSM-IV should be confirmed or ruled out. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. If PTSD is diagnosed, the elements supporting the diagnosis, to include the stressor(s), should be identified. With respect to all acquired psychiatric disorders currently present or present at any time during the pendency of this claim, specifically considering a major depressive disorder and an anxiety disorder, the examiner should provide an opinion with respect to each disorder as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. The rationale for all opinions expressed should also be provided. If the examiner is unable to express any portion of the requested opinion without speculation, the reasons and bases for that opinion should also be provided, and any missing evidence that might enable the examiner to provide the opinion should be identified. 6. Then, the RO or the AMC should readjudicate the claim, with specific consideration of all acquired psychiatric disorder (not just PTSD). If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran 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 Supp. 2014). _____________________________________________ MILO H. HAWLEY 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).