Citation Nr: 1803962 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI), claimed as a head injury. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from November 1981 to December 1987 and from November 1988 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues were previously characterized as new and material evidence claims, but have been changed based on the reasons discussed below. A service connection claim may include claims for service connection of any disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, the Board has taken an expansive view of the Veteran's claim pursuant to Clemons. The Veteran's service connection claims for a head injury and a psychiatric disorder were previously denied in 1997, 2004, 2005, and most recently in 2010. Subsequently, in February 2012 the Veteran's personnel file was associated with the claims file and in March 2012 additional service department records from his first period of service were added to the record and considered in the September 2012 rating decision that is on appeal. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i) (2017). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In the instant case, relevant official service department records were added to the file since the May 2010 rating decision. Therefore, the provisions of 38 C.F.R. § 3.156(c) are applicable to the present claim. As a result, a determination of whether new and material evidence was submitted is not required and the decision will be reconsidered in full. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required in this case. The Veteran claims that he experienced a head injury during his first period of service. Specifically, in an October 2010 statement, he claims that he lost consciousness after the "deuce and a quarter" truck that he was riding in "overturned on an icy road..." He said that he hit his head on the windshield and "really thought [they] were going to die." He said that he was "treated and released on the spot by medical staff, but it [was not] long before [he] was honorably discharged." The Veteran said this injury occurred during the winter months shortly before the end of his first period of service. His DD 214 shows that his first period of service ended in December 1987. After the head injury, the Veteran said that he started drinking heavily and wanted to leave service. After attempting to adapt to civilian life for approximately ten months, the Veteran reenlisted for a second period of service that began in November 1988. During the Veteran's second period of service, he appears to have exhibited behavior that was inconsistent with his first period, and was eventually discharged in June 1989 for a personality disorder. He said that during his second period of service he was "very stressed out" and would leave the barracks without permission, which led to being detained in one instance. In a July 2004 statement, the Veteran said that he was knocked unconscious and injured his right knee during an April 1989 parachute-training incident. Based on the Veteran's statements of possible residuals of a traumatic brain injury (TBI), a VA examination is warranted. The Veteran was discharged from his second period of service due to a personality disorder. A June 1989 Report of Mental Status Evaluation stated, "Present maladjustment to military service reflects a life-long pattern of recurrent and immature behavior and is so deeply ingrained and severe as to significantly impair his capacity to adapt to and function in the military environment." There is no additional evidence to support this statement and the Veteran's service records do not show any prior disciplinary actions. In fact, the Veteran's file shows that throughout his first period of service he received two good conduct medals as well as various promotions, awards, and displayed other positive mental health characteristics, such as successfully completing college-level training courses. In an October 2010 statement, the Veteran said that one of his brothers, a U.S. Marine serving in Hawaii, was killed in March 1988, which was between his first and second periods of service. In a separate October 2010 statement, he said that he witnessed a fellow airborne trainee die from injuries he sustained after attempting to qualify for the Parachute Badge in March 1989. However, the correct date is likely to be in early April 1989 as the Veteran had also stated that he injured his knee during his last qualifying jump. The timeline for this incident as occurring in early April 1989 is further supported by service treatment records for this specific knee injury due to a parachute training accident and the Veteran's Parachute Badge award date. The Veteran said that all of these incidents severely affected his mental health. The record also shows that from 2002 to 2004 the Veteran received mental health treatment by a Kentucky state mental institution while he was incarcerated. These private treatment records have not been requested. Regarding the Veteran's PTSD claim, he previously submitted three different statements in October 2010 that included sufficient information that has yet to be developed. The Veteran's first stressor consisted of watching a fellow soldier die after sustaining injuries from a parachute training accident in April 1989 at Fort Benning, Georgia. The Veteran's second stressor occurred in March 1988, between his first and second period of service, when his brother died while serving as a U.S. Marine in Hawaii. The Veteran said that another brother died in October 1999 while serving in the Marines. Both of these incidents were not witnessed directly by the Veteran and also occurred outside of the two periods of active service. The third stressor occurred in June 1989. The Veteran said, "Because of [his] mental condition [he] would just walk out of the barracks and was very stressed out." He stated that there were "orders to cuff [him] to a pole by the CQ desk" and was treated like "a prisoner of war" for "about a week." Another possible stressor statement involved a winter 1987 truck accident with fellow soldier, Specialist J.C.. The Veteran said that the two soldiers were traveling to Pirmasens, Germany when their vehicle, a "deuce and a quarter" truck, "overturned on an icy road..." He said that he lost consciousness after he hit his head on the windshield and "really thought [they] were going to die." The Veteran said this injury occurred during the winter months (approximately October to December 1987) shortly before the end of his first period of service. At a minimum, the above detailed information should be adequate for the AOJ to develop this issue despite the July 2012 VCAA letter that stated the Veteran did not provide the location and approximate two-month period of when the stressful events occurred. Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. Request authorization from the Veteran to obtain all outstanding private treatment records for his claimed disabilities, specifically mental health records created between 2002 and 2004 by the Kentucky state mental institution where the Veteran received treatment while he was incarcerated. 2. Obtain VA treatment records created since January 2010. 3. Develop the Veteran's PTSD stressor verification information as detailed in the Remand narrative and provided in various October 2010 statements. 4. Schedule the Veteran for a VA examination to address the nature and etiology of any traumatic brain injury residuals. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination and note this in the examination report. The claims file should be made available for review to the examiner. The examiner should address the following: a) Whether it is at least as likely as not (50 percent of greater probability) that the has a current diagnosis for residuals of a traumatic brain injury residuals that are related to service. The examiner should specifically discuss the Veteran's lay report of an in-service head injury and loss of consciousness due to a large truck accident during the end of his first period of service while stationed in Germany as well as a loss of consciousness after a parachute-training incident in April 1989. All opinions should be supported by a clear rationale. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disability. The entire claims file should be reviewed by the examiner. After reviewing the record, the examiner is requested to: a) Discuss the validity of the personality disorder diagnosis that was made in June 1989, to include the circumstances surrounding the diagnosis, including possible residuals of a TBI, as well as the differences between the first period of service, which included receipt of two Army Good Conduct medals, completion of various college-level courses, and other promotions/awards, and his second period. b) Identify all psychiatric disorders diagnosed post-service and explain whether any of these diagnosed conditions are related and/or represent a superimposed disability on any prior personality disorder. c) For each acquired psychiatric disorder identified, render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric condition, to include paranoid schizophrenia, anxiety, depression, and PTSD that were diagnosed in post-service treatment records, had its onset in service or is otherwise related to service. All opinions should be supported by a clear rationale. 6. After completing the above and conducting any additional development deemed necessary, including obtaining any updated treatment records, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ H. SEESEL 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).