Citation Nr: 1752518 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-05 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected disease or injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1983 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a November 2016 Board hearing before the undersigned Veterans Law Judge (VLJ) in Phoenix, Arizona. A transcript of the hearing is of record. The Veteran originally filed a claim in December 2009 for entitlement to service connection for PTSD. As will be discussed further below, the evidence of record referenced additional acquired psychiatric disorder diagnoses beyond PTSD and the Veteran's claim has therefore been expanded and recharacterized as indicated on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As noted in the Introduction, the Veteran filed a claim for entitlement to service connection for PTSD in December 2009. At this time, he submitted a VA Form 21-0781 (Statement in Support of Claim for Service Connection for [PTSD]) and reported two stressful incidents. The first related to a reported helicopter incident occurring at Fort Hood, which has not been corroborated by credible supporting evidence. See May 2010 Joint Services Records Research Center (JSRRC) Response. The second reported stressful incident related to the Veteran being "[t]hrown from a truck," resulting in various reported injuries, to include to the right knee. The AOJ stated in the December 2009 rating decision on appeal that "[w]e did verify the reported incident where you were thrown from a truck while on active duty" and the Board notes that various service treatment records (STRs) referenced this incident. See, e.g., February 1985 Medical Board Record (stating that the Veteran's right knee "was injured when pushed from a 51/2 ton truck in Oct[ober] [19]83"). The Veteran was afforded a July 2010 PTSD VA examination. The examiner noted that the Veteran did not meet the criteria for PTSD, but did diagnose delusional disorder, major depressive disorder and pain disorder associated with both psychological factors and general medical condition. The examiner provided an opinion that referenced the Veteran's "tragic childhood" and stated that "[t]his history predisposed him to severe mental illness from an early age" and that "[t]he episodes he witnessed and participated in during his military service most likely aggravated the depression and his thought disorder." While the examiner related to the Veteran's depression and thought disorder to his active service and the "episodes he witnessed and participated in," it is uncertain what specific episodes the examiner was referencing in that the examination report only discussed one reported stressor - the reported helicopter incident occurring at Fort Hood (and related incidents), which as noted above, has not been corroborated. As a result of this uncertainty, the Board finds that remand is warranted for a new VA examination and opinion to address direct service connection, as outlined further in the remand directives below. In addition, as noted, the July 2010 VA examination report noted a diagnosis of pain disorder associated with both psychological factors and general medical condition. The Veteran is service connected for a right knee disability (anterior cruciate ligament deficiency, rated at 30 percent disabling) and VA treatment records reflected that he also has multiple nonservice-connected disabilities. The Board finds that the July 2010 VA examination report reasonably raised the issue of secondary service connection and therefore while on remand an opinion addressing such must also be obtained, as outlined further in the remand directives below. Also, while on remand, outstanding VA treatment records must be obtained. Currently of record are limited VA treatment records, which appear to include complete records only from December 2011 to September 2012. The Veteran submitted a March 2010 statement from Dr. J.W., which stated that the Veteran met the criteria for PTSD, without an explanation as to etiology of such diagnosis. The limited VA treatment records reflected that Dr. J.W. is a VA psychiatrist who had treated the Veteran for mental health issues. Further, during the course of the appeal period, the Veteran submitted in January 2012 and March 2013 VA Form 21-526bs (Veteran's Supplemental Claim for Compensation) attempting to reopen his PTSD claim and on these forms he listed a VA medical center as having relevant treatment records. Also, at the November 2016 Board hearing, the Veteran referenced seeing two VA psychiatrists "constant for over nine years." As the Veteran and the record referenced potentially relevant outstanding VA treatment records related to treatment for acquired psychiatric disorders, such must be obtained on remand. In addition, a July 2004 VA treatment note referenced the Veteran being on "[o]n SS" and the Veteran reported on a September 2002 VA Form 21-526 (Veteran's Application for Compensation and/or Pension) that he was receiving disability benefits from the Social Security Administration (SSA). A March 2007 VA treatment note stated that the Veteran was "on disability for his right knee and his neck fusion." It is not clear whether any SSA benefits were related to the acquired psychiatric disorder claim on appeal. As such the Board cannot conclude, based upon the current record, that there are any relevant, outstanding records in the custody of the SSA. Thus, while on remand, the Veteran must be contacted to clarify whether any SSA disability benefits claims were related to the acquired psychiatric disorder claim on appeal. If the Veteran responds affirmatively, attempt must be undertaken to obtain such records. Finally, a July 2004 VA treatment note referenced the Veteran as seeing a private psychiatrist "from La Frontera and thru workman's comp" and at the November 2016 Board hearing the Veteran referenced "about two years ago I was also seeing a psychiatrist through workmen's comp because of my sleep problems and my neck was broken." As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records or complete a release for such providers; if any releases are returned, the AOJ must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (2017) (stating "[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records"). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records (this includes all records dated prior to December 2011 and from September 2012). 2. Contact the Veteran and ask him whether any SSA disability benefits claims were related to the acquired psychiatric disorder claim on appeal. If the Veteran responds affirmatively, attempt must be undertaken to obtain such records. 3. Contact the Veteran and request that he either provides any outstanding relevant private treatment records or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159(e) (2017). 4. Afford the Veteran a VA examination with respect to his acquired psychiatric disorder claim. The examiner must provide an opinion addressing the following: a. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired psychiatric disorder present during the appeal period had its onset during active service or is related to any in-service disease, event, or injury, to include an incident related to the Veteran being thrown/pushed from a truck (see the body of the remand for further discussion). While review of the entire record claims folder is required, attention is invited to the July 2010 VA examination report (which stated that "[t]he episodes [the Veteran] witnessed and participated in during his military service most likely aggravated the depression and his thought disorder") and the November 1984 Report of Medical History form, on which the Veteran reported having ever had or having now nervous trouble of any sort. b. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired psychiatric disorder present during the appeal period is due to or caused by the Veteran's service-connected right knee disability. c. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired psychiatric disorder present during the appeal period has been aggravated (i.e., increased in disability) by the Veteran's service-connected right knee disability. With respect to items "b" and "c," while review of the entire claims folder is required, attention is invited to the July 2010 VA examination report and the provided diagnosis of pain disorder associated with both psychological factors and general medical condition. For all opinions provided, the medical professional must include the underlying reasons for any conclusions reached. 5. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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 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. §§ 5109B, 7112 (2014). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).