Citation Nr: 1643352 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 11-30 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD); anxiety, and depression. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from January 1975 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the June 2010 rating decision, the RO adjudicated the issue of service connection for PTSD separately from the issue of service connection for depression and anxiety. The Board has combined and recharacterized the issues to best reflect the broad scope of the single issue intended by the Veteran, as indicated by the evidence. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2016, the Veteran withdrew his prior request for a Board hearing. See 38 C.F.R. §§ 20.700, 20.702(e), 20.704(e) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND The Board finds that a VA examination is needed, especially as it pertains to the nexus requirement. As a threshold matter, there is no material dispute that the Veteran is diagnosed with a psychiatric condition. With regard to the in-service events, he wrote in a VA form 21-0781a that his current psychiatric condition is related to traumatic events during service, including being choked during a demonstration and also being picked up by the neck by a drill sergeant. These events are not documented in his service records. However, the absence of such documentation is nondeterminative in this situation because the Veteran has not indicated that he reported the incidents in any way that would have been recorded. See AZ v. Shinseki, 731 F.3d 1303, 1306 (Fed. Cir. 2013). Because such documentation cannot be expected, there must be other credible supporting evidence of these events. See Gagne v. McDonald, 27 Vet. App. 397, 401 (2015). In this regard, there are some indications in the record that the Veteran may not be a credible historian. Nonetheless, the record currently includes a September 2009 supporting letter from a witness. This witness explained that he had known the Veteran his entire life. As such, he commented that the Veteran "came out different" from service. At present, the Board has no reason to discount the authenticity or credibility of this witness statement. Accordingly, this witness statement provides an indication that the in-service events may have occurred and that the Veteran may have had ongoing symptomatology after service. On this basis, a VA examination is needed. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service psychiatric problems and post-service psychiatric symptoms, to include any change in behavior since service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After completing any preliminary development needed, which includes obtaining any outstanding records, arrange for the Veteran to undergo a VA examination to address the claimed psychiatric disorder. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the lay statement of record regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all psychiatric disorders found extant. If the Veteran previously had any such psychiatric condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? If PTSD is diagnosed, please identify the stressor(s) upon which the diagnosis is based. In answering question (b), the examiner is asked to consider a September 2009 witness statement, which observes that the Veteran "came out different" from service. For purposes of this examination, the examiner should take this statement as true. Accordingly, the examiner should address whether this witness's recollection makes a nexus to service more or less likely. In answering these questions, please articulate the reasons underpinning all conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 3. Then readjudicate the remanded claim with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 2014). _________________________________________________ STEVEN D. REISS 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).