Citation Nr: 1802766 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-00 620A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Drew N. Early, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and K.M ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board notes that the issue on appeal was characterized by the RO as entitlement to service connection for PTSD. However, in light of the Veteran's assertions and the evidence of record, the Board has recharacterized the issue more broadly to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). During the August 2017 hearing, the Veteran's attorney requested the Board to expedite his case on the basis of financial hardship due to his unemployment. See 38 U.S.C. § 7107 (a) (2012); 38 C.F.R. § 20.900 (c) (2017). The record contains various past-due bills as evidence of financial hardship; however, the Board finds that this evidence does not demonstrate the kind of severe financial hardship contemplated by the regulation. 38 C.F.R. § 20.900. Therefore, the motion to advance the case on the docket based on financial hardship is denied. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A review of the record shows that the Veteran has reported various stressors over the course of his appeal. During the August 2017 Board hearing, the Veteran reported that he experienced an in-service stressor related to his fear of hostile military activity when he was deployed to Cyprus during its conflict with Turkey. He reported that this incident occurred when he was required to assist in evacuating Americans from Cyprus. He also reported experiencing a fear of terrorist activity when the U.S. Ambassador to Cyprus was assassinated in August 1974. In VA clinical records dated in August 2011, the Veteran described having had to remove dead bodies from trucks during the war between Turkey and Greece, but he did not mention the assassination. In addition to his stressor related to the fear of hostile military activity, the Veteran also reported witnessing another distressing incident when he saw a man being stabbed in Barcelona, Spain. In a separate August 2012 statement, he described a similar incident, but instead reported that he witnessed a man being shot in Madrid, Spain. In a July 2011 psychological evaluation found in the Veteran's Social Security Administration (SSA) records, he denied having any combat duty and vaguely described witnessing dead bodies during service. There is no mention of the incident in Spain. However, statements submitted by the Veteran in July 2009 describe other stressful incidents that were not mentioned during the hearing, such as an incident where other servicemen were swimming overboard when a shark was sighted and an incident where he blacked out on the deck of the ship during stern watch. Although the Veteran's complete service treatment records have been unavailable, as noted in a December 2009 VA memorandum, his December 1973 report of medical history taken at the time of enlistment shows that he admitted to attempting suicide prior to entering service. The Veteran later denied having any suicidal attempt prior to service. See August 2017 hearing transcript. It does not appear that his complete service personnel records may have been obtained, to include any records pertaining to disciplinary actions referenced in the available personnel records. Thus, on remand, additional attempts should be taken to secure the Veteran's complete service treatment and personnel records from the National Personnel Records Center (NPRC), Records Management Center (RMC), or other appropriate location. The Board also notes that the Veteran has not been afforded a VA examination in connection with his claim. The Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any psychiatric disorder that may be present, including whether they are related to any fear of hostile military activity. Additionally, during the August 2017 hearing, the Veteran reported that he had received some treatment for his PTSD in the 1980's from Georgia Regional Hospital, or a similar facility, located in Milledgeville, Georgia. He also reported that, while he was incarcerated from 1980 to 1987, he received outpatient treatment. On remand, these records should be located and associated with the file. The Veteran is also in receipt of benefits from the SSA, and those records have been associated with the claims file. However, on remand, any updated records that exist should also be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a psychiatric disorder. A specific request should be made for records from the Georgia Regional Hospital, or a similar facility, located in Milledgeville, Georgia, in the 1980s; medical records from the time period that the Veteran was incarcerated; and Dr. H. (initials used to protect privacy; identified during the August 2017 hearing). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file, The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should obtain any SSA records that have not yet been associated with the file. If the search for such records yields negative results, the claims file should be properly documented as to the unavailability of those records. 3. The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), or any other appropriate repository of records and request the Veteran's complete service personnel and treatment records, to include any records pertaining to disciplinary actions and the Veteran's discharge. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice should be provided to the appellant and her representative. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each diagnosis identified other than PTSD and a personality disorder, the examiner should provide an opinion as to whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. For each psychiatric disorder that preexisted the Veteran's active duty service, the examiner should state whether there is clear and unmistakable evidence that there was no permanent increase in disability during service or clear and unmistakable evidence that any increase in disability was due to the natural progress of the preexisting condition. For each psychiatric disorder other than PTSD and a personality disorder that did not preexist the Veteran's active duty service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise causally or etiologically related to his military service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any combat-related stressors or stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the VBMS file. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).