Citation Nr: 1808803 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 14-01 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2010 by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD and depression. In light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. In March 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. During the hearing, the undersigned granted the Veteran's request to hold the record open for a period of 60 days for the submission of additional evidence. Such evidence was received in April 2017. This new evidence is subject to initial review by the Board because the Veteran filed his substantive appeal in December 2013, which was after February 2, 2013, when the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 became effective, and he has not requested that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C.A. § 7105(e)(1) (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that he has an acquired psychiatric disorder that is related to his military service. Specifically, at the March 2017 Board hearing, he stated he was a surgical technician at Walter Reed Hospital and assisted on surgeries for those seriously injured, including fellow service members transported from Vietnam with combat-related injuries. The Board notes that neither the Veteran nor the evidence of record indicates that he served in combat directly. Additionally, the Veteran also testified that he assisted on a surgery for a soldier who had an explosive device go off on his lower half that seriously injured such parts of his body. The Veteran has also submitted statements describing such event throughout the appeal period. See March 2010; October 2011; and December 2013 statements. Furthermore, in a March 2017 statement, the Veteran noted that he still lived with the horrific events that he witnessed as a surgical technician during his military service. The Board notes that the Veteran's DD Form 214 confirms that his military occupational specialty (MOS) was an operation room specialist and was assigned to Walter Reed Army Medical Center in Washington, D.C. The Veteran's service treatment records (STRs) are silent as to any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder. However, his post-service treatment records reveal diagnoses of PTSD and depressive disorder, not otherwise specified (NOS) (see August 27, 2009 VA treatment record) and that he had been receiving treatment for such disorders. In September 2010, the Veteran was afforded a VA examination. At such time, the examiner found that the Veteran had a diagnosis of simple phobia and that, while he was likely exposed to stressful situations as an operation room specialist, his experiences did not meet Criterion A for a diagnosis of PTSD. The examiner also noted that it was unclear what precipitated the experience of the Veteran's phobia, but it was rather remote to attribute it to his military service. The examiner further noted that the Veteran had mild depression that also developed remotely from his military experience. The examiner concluded that none of the Veteran's current symptoms could be directly attributed to his military experience and were more likely than not caused by some other more recent event in the last two to five years. Nonetheless, the Board finds that a remand is necessary to obtain an addendum opinion to decide the claim. Specifically, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM-IV and replaced them with references to the recently updated Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The AOJ certified the Veteran's appeal to the Board in November 2016 and, therefore, this claim is governed by the DSM-5. In this regard, the September 2010 examiner did not consider the Veteran's symptomatology and diagnosis of PTSD in accordance with the criteria set forth in DSM-5. Additionally, Criterion A regarding the nature of a stressor that can support a PTSD diagnosis has changed under the DSM-5, to include a person's repeated or extreme indirect exposure to aversive details of the event, usually in the course of professional duties. Thus, the Board finds that a remand is warranted to obtain an addendum opinion to determine whether the Veteran meets the DSM-5 criteria for a diagnosis of PTSD that is related to his military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the efforts to provide an examination, an adequate examination must be provided or the claimant must be notified why one cannot or will not be provided). Moreover, after the September 2010 VA examination was conducted, a letter was received in October 2011 from the Veteran's licensed professional counselor, R.B. In such letter, R.B. stated that the Veteran had classic features of PTSD and that he witnessed hundreds of situations that involved death and repeatedly experienced intense fear of worsening the plight of an endless number of patients. R.B. also noted that the Veteran was still plagued by intrusive and recurrent thoughts of the distressing events when military, surgeries, and medical context are encountered. Thus, the examiner should also consider such letter in rendering the requested opinion. Lastly, at the March 2017 Board hearing, the Veteran stated that he had received private treatment for his psychiatric disorder, but had not submitted such records. Thus, while on remand, the Veteran should be given an opportunity to identify and submit any records relevant to his claim on appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Return the record to the VA examiner who conducted the Veteran's psychiatric September 2010 examination. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the September 2010 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the entire record, the examiner should provide an opinion on the following: (A) The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the DSM-5 criteria. In this regard, the examiner should specifically address whether the Veteran has PTSD, and/or depressive disorder NOS, as shown by the treatment records during the pendency of the claim. (B) The examiner should specifically indicate whether the Veteran meets the DSM-5 criteria for PTSD and whether such diagnosis is the result of an in-service stressor, to include the Veteran's duties as an operation room specialist. If the examiner finds that the Veteran did not meet the DSM-5 criteria for PTSD at any time during the pendency of his claim, such a finding should be reconciled with the evidence of record demonstrating such a diagnosis, to include an August 2009 VA treatment record. The examiner should also consider and discuss the October 2011 letter from R.B. indicating the Veteran had classic features of PTSD related to his military service. (C) For each currently diagnosed acquired psychiatric disorder other than PTSD, to include depressive disorder NOS, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder is related to the Veteran's military service. All opinions expressed by the examiner should be accompanied by a complete rationale. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).