Citation Nr: 1803873 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-09 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include panic disorder with agoraphobia. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd Counsel INTRODUCTION The Veteran served on active duty from August 1972 to May 1973 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2016. A transcript of that hearing is of record. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A June 2004 private treatment record indicated that the treating physician helped the Veteran fill out paperwork to apply for disability benefits from the Social Security Administration (SSA) regarding his panic and anxiety, among other disabilities. In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the U.S. Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records that may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). As these records are relevant to the Veteran's current claim, and are not associated with the claim file, they should be requested upon remand. The Veteran has pointed to several incidents in service that he believes are the cause of his current psychiatric disability. Specifically, he has referenced an event in which the bus he was on nearly hit another head bus and rear-ended a pickup truck, although no one was injured. He also discussed being on a flight that was diverted to another airport, and learning later that the diversion was because of a plane crash at the first airport, resulting in fatalities. The Veteran reported that he has had extreme fear of flying since this episode. He has also stated that when he was drafted he needed to leave behind is wife and young son, which was extremely difficult for him, especially because his son was seriously injured in November 1972 and the Veteran had been abandoned by his own father as a child. The Veteran has also pointed to an incident in which a private that the Veteran was friendly with committed suicide, and the Veteran saw the dead body. The Veteran has also testified that there was a lot of racial tension and related bullying while he was in service, as well as bullying from civilians who opposed the Vietnam War. The June 2010 examination of record did not fully discuss these issues, and instead restricted his opinion to the financial hardship that led to his hardship discharge from service. The Board recognizes that a May 2010 VA memorandum found that there was a lack of information required to verify the stressors identified by the Veteran, and that information such as the date (month and year) of the event as well as the location and name of the base and individuals involved. However, the June 2010 examination, as supported by the rest of the medical record, supports a diagnosis of panic disorder with agoraphobia, not PTSD. 38 C.F.R. § 3.304(f), which discusses the verification of stressors, is specific to PTSD. As the record, which now includes an examination, indicates that the Veteran has not been diagnosed with PTSD, 38 C.F.R. § 3.304(f) does not apply. A psychiatric opinion should be obtained that considers all of the events identified by the Veteran. Additionally, even if lack of verification were a bar to considering the described suicide, motor vehicle accident, bullying, and diverted plane, it would still be appropriate to obtain an opinion regarding the Veteran's emotional stress at being separated from his wife and young son. The Veteran's VA Form 9 indicates that the Rockford VA indicated that his mental health disability was aggravated by service, and referenced recent evaluations in December 2012 and March 2013. Upon remand, the record should be updated to obtain VA treatment records compiled since December 4, 2009, in an attempt to obtain the records referenced in the Veteran's VA Form 9. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and request the Veteran's Social Security disability benefits records, including all medical documents and decisional documents. All attempts to obtain the records should be documented in the file. If no records are found and additional requests for Social Security records would be futile, notify the appellant in accordance with 38 C.F.R. § 3.159(e). 2. Obtain all treatment records for the Veteran from the Rockford VA Outpatient Clinic dated from December 4, 2009 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. If possible, the Veteran should submit these records himself. 3. Thereafter, forward the claims file to an appropriate VA clinician. After reviewing the file, the clinician is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's panic disorder with agoraphobia is caused by or etiologically related to service. The clinician should consider that the Veteran believes that his current panic disorder with agoraphobia is related to several incidents in service, including: 1) a motor vehicle accident where the bus the Veteran was riding on nearly hit another bus and eventually rear-ended a truck, resulting in no injuries; 2) a flight he was on was diverted to another airport, and he later learned the reason for the diversion was that a plane had crashed at the airport where they were scheduled to land, resulting in fatalities. He stated that he has had a fear of flying since this event; 3) separation from his wife and young son, which was particularly difficult because his son was seriously injured in his absence, and because the Veteran had been abandoned by his father as a child; 4) a general atmosphere of racial tension and bullying in service; 5) general bullying by civilians in California who opposed the war; and 6) an incident in which a private with whom the Veteran was friendly committed suicide, and the Veteran reported that he saw the body. The clinician should consider these events. The clinician should also consider an August 2004 private treatment record finding that the Veteran has a very strong family psychiatric history for panic disorder and generalized anxiety disorder as well as bipolar disorder. Any opinion offered must be supported by a complete rationale. If the clinician feels that a new examination is necessary to provide the requested opinion, such an examination should be scheduled. Indications of exaggeration (if any) should be noted for the records, if needed. 3. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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.A. §§ 5109B, 7112 (West 2014). JOHN J. CROWLEY 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) (2017).