Citation Nr: 1759937 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-09 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disability, including schizophrenia, schizoaffective bipolar manic disorder, major depressive disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Appellant served on active duty for training (ACDUTRA) from January 24, 1979, to March 2, 1979. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. As explained in the May 2015 remand, the Appellant's claim for entitlement to service connection for an acquired psychiatric disability was previously denied in an August 1989 Board decision and an August 1994 rating decision. In August 2007, the Appellant petitioned to reopen his claim. The August 2008 rating decision denied the Appellant's petition to reopen. The Board also determined, that new and material evidence was not necessary and the claim was reconsidered anew, as VA received additional service treatment records in August 2013 in conjunction with the development ordered in a November 2010 Board remand. See 38 C.F.R. § 3.156(c) (2017). The Board further remanded the claim for additional development. This matter is now returned to the Board for further appellate review. Given an additional diagnosis of major depressive disorder of record, the Board has expanded and recharacterized the issue as reflected on the title page, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the RO. VA will notify the Appellant if further action is required. REMAND In the Board's May 2015 remand, the claim was remanded for a VA examination for the Appellant's service connection claim for a psychiatric disability. The September 2015 Compensation Exam Inquiry and the September 2017 Supplemental Statement of the Case indicates the Appellant did not appear for the scheduled VA examination. However, the Appellant's attorney has indicated in November 2017 correspondence that the Appellant was incarcerated at the time of the scheduled VA examination and therefore requests an additional VA examination. There are specific consequences for an appellant's failure without good cause to report for a VA examination. 38 C.F.R. § 3.655. In light of the attorney's statement, which appears to be consistent with the evidence of record, the Board finds that the Appellant had good cause to miss the examination and a new VA examination should be scheduled as to the nature and etiology of any current psychiatric disability on remand. Regarding private treatment records, the Board requested that the RO attempt to obtain records from numerous facilities. In a response, the Appellant's attorney indicated that many of the medical facilities have closed and provided the Appellant's authorization for the remaining facilities. The Board notes, however, the Appellant's private treatment records indicate that he sought treatment from the Circle of Life Hospital (currently Stonecrest Center) in 1979 for his psychiatric disability. As these records have not yet been requested or associated with the record, and may be pertinent to the claim, the RO should attempt to obtain these records. The Board also noted that in his August 2007 petition to reopen, the Appellant claimed entitlement to service connection for PTSD. In July 1979 and August 1982 statements, as well as during his August 1985 hearing, the Appellant asserted he was involved in a fight during ACDUTRA from which he suffered head and dental injuries. The Board requested that the RO send the Appellant notice with respect to personal assault PTSD cases and stressor verification under 38 C.F.R. § 3.304 (f)(5), and to ask him to provide details concerning his asserted stressor. The Board notes that these letters were sent to the Appellant in May 2015, September 2016, and May 2017, however, these letters were returned as undeliverable. Accordingly, on remand the RO should take appropriate action to locate the Appellant, to include contacting his attorney and sending him the notice letter. As the matter is being remanded, any updated VA treatment records should be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Accordingly, the appeal is REMANDED for the following action: 1. Obtain any outstanding updated VA treatment records. 2. After taking appropriate action to locate the Appellant (note the May 2015 change of address letter), resend to the Appellant and his attorney the notice related to personal assault PTSD cases and stressor verification under 38 C.F.R. § 3.304(f)(5). Again, the RO should advise the Appellant of potential secondary sources tending to substantiate his claim of personal assault. Examples of such evidence include, but are not limited to: Records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: 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; or unexplained economic or social behavior changes. The Appellant should be asked to submit evidence from any secondary sources, and if he requests assistance in obtaining same, all assistance due him should then be provided by the RO. 3. Request that the Appellant complete a VA Form 21-4142, Authorization and Consent to Release Information to VA for all private treatment records related to any acquired psychiatric disability, to include Circle of Life Hospital (currently Stonecrest Center). 4. The AOJ should take all appropriate steps to verify the Appellant's claimed stressor, to include those pertaining to his reports of personal assault in accordance with 38 C.F.R. 3.304(f)(5). The RO should also forward a copy of his military personnel records, together with the stressor information, to the Joint Services Records Research Center (JSRRC). Ask the JSRRC to provide any additional information available regarding the Appellant's stressors. The Appellant should also be invited to submit any supporting evidence, including lay evidence from fellow service members who witnessed the Appellant's stated stressors. All actions to verify the alleged stressors should be fully documented in the claims file. If the information provided by the Appellant lacks sufficient specificity to be verified, the AOJ should make a formal finding to that effect. 5. Thereafter, schedule the Appellant for a VA psychiatric examination. The claims file must be made available to the examiner in conjunction with the examination. a. Identify all applicable psychiatric diagnoses. In so opining, the examiner should reconcile his or her findings with the diagnoses of record. b. State whether it is at least as likely as not (i.e., at least a 50 percent probability or higher) that any diagnosed psychiatric disability, other than PTSD, is related to a disease or injury incurred in active duty for training (ACTDUTRA), to include the Appellant's in-patient treatment for sleep deprivation and his assertion that he suffered a head injury during basic training. The examiner is requested to specifically address the in-patient clinical records dated January 26, 1979, to January 29, 1979, the article titled "Can Sleep Deprivation be the Cause of Mental Illness?", buddy statements, as well as the Attorney's arguments and citations to articles in the November 2017 correspondence. c. The examiner should specifically consider all evidence of record related to the Appellant's alleged in-service personal assault- to include his assertions, supporting buddy statements, and any references to altered behavior in the STRs and Military Personnel Records, which reflect the Appellant received Article 15 disciplinary action and was discharged due to his behavior-and determine whether the collective evidence indicates that the alleged assault occurred. If so, the examiner should address whether the Appellant meets-or, has met-the diagnostic criteria for PTSD as a result of such stressor. If a diagnosis of PTSD resulting from the identified stressor is deemed appropriate, the examiner should fully explain how the diagnostic criteria are met, to include comment upon the link, if any, between the stressor and the Appellant's symptoms. In addressing the above, the examiner must consider and discuss all medical and other objective evidence, to include the all lay assertions-to include the Appellant's competent assertions as the onset, nature, and continuity of psychiatric symptoms, as well as the buddy statements. Notably, the absence of documented evidence of specific psychiatric disorders during the Appellant's ACDUTRA service or at discharge should not serve as the sole basis for a negative opinion. In this regard, the examiner is advised that the Appellant is competent to report his symptoms and history, and that the lay assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. After completing the above and any other development deemed necessary, readjudicate the claim. If the determination remains unfavorable to the Appellant, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond. The Appellant 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 (2012). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).