Citation Nr: 1815403 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 12-17 781A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). 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 delay, further development is necessary prior to adjudication of the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. I. Additional VA Examination The Veteran was afforded a VA PTSD examination in July 2011, at which time he described one in-service stressor-the bombing of bases located on several islands in the Sea of Japan where he was staying while completing temporary duty assignments. The Veteran also reported that, post-service, he had no significant symptoms until 2008, at which time he experienced disturbed sleep and a sense of fear when helicopters flew overhead. The VA psychiatrist who conducted the examination found that the Veteran's described stressor was adequate to support a diagnosis of PTSD, but that the Veteran did not have that disorder, as two of the other criteria required to confirm a PTSD diagnosis had not been met. Instead, the examiner diagnosed the Veteran with anxiety disorder, not otherwise specified (NOS), and opined that the condition was less likely than not incurred in or caused by service. In support of that opinion, she explained that, although the symptoms and behavior described by the Veteran appeared consistent with a reaction to stressful in-service situations, it was unlikely that he would go 50 years without any significant symptoms, then suddenly develop a condition related to fear of aircraft. A VA psychology team that reviewed the Veteran's case during the course of treatment in December 2011 reached a conclusion similar to that of the 2011 VA examiner-specifically, that his symptoms were "more likely explained by Anxiety Disorder related to current life stressors." See December 13, 2011, Psychology Note. However, the 2011 VA examiner did not explain why the Veteran's current symptoms, if consistent with a reaction to a stressful event he experienced during service, could not have been caused by that event due solely to the timing of their onset, and the Veteran's treatment team did not identify the current life stressors to which they attributed his anxiety disorder. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (explaining that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Notably, since the 2011 VA examination, the Veteran has clarified that his current symptoms merely worsened when an airport was built near his home in approximately 2008; that he had experienced those symptoms "throughout the years;" and that he had simply worked through them without seeking help. The Board also notes that he has more recently described another in-service stressor-related to personal trauma-that he did not share with the 2011 VA examiner. In view of the deficiencies in the opinions currently of record and the additional information the Veteran has now provided, the Board finds that he should be afforded another VA examination on remand. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). II. Formal Finding Unfortunately, the bulk of the Veteran's service treatment and personnel records were likely destroyed in the 1973 fire at the National Personnel Records Center. A February 2014 letter notified the Veteran of this, and requested that he submit a completed NA Form 13055 and any available records in his possession. However, a Formal Finding regarding the unavailable service department records has not been issued to date. As there is no indication that additional records have been located in connection with the RO's development efforts, that action must be completed on remand. 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. If the Veteran's service department records remain unavailable, notify the Veteran and place a Formal Finding of Unavailability in the claims file. 2. After the development requested in item 1 has been completed, schedule the Veteran for a VA examination with a psychologist or psychiatrist to determine the nature and etiology of any psychiatric disorders, including PTSD. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all current psychiatric disorders. In doing so, please specifically discuss the psychiatric diagnoses of record, including but not limited to anxiety disorder and depressive disorder. In determining whether the Veteran meets the criteria for a specific psychiatric diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection (here, June 3, 2011). Please note that, although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (b) For each diagnosed psychiatric disorder, is it at least as likely as not (50 percent probability or more) that the disorder had its onset in service, is related to the Veteran's reported in-service stressors (including but not limited to experiencing air raids while on temporary duty on islands located in the Sea of Japan (see, e.g., January 30, 2018, Correspondence) and experiencing sexual encounters initiated by a superior officer (see September 26, 2011, Correspondence), or is otherwise related to service? Please explain why or why not, specifically discussing (1) the Veteran's assertion that he has experienced flashbacks or anxiety attacks since service that were exacerbated when an airfield was built near his home; (2) his assertion that the in-service personal assaults he experienced affected his ability to establish relationships later in life; and (3) whether the evidence of record indicates that a personal assault occurred in service. (c) If the criteria for a diagnosis of PTSD are met, please specify the stressor(s) supporting the diagnosis. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. If the examiner diagnoses PTSD on the basis of a stressor for which credible supporting evidence is needed, the AOJ should undertake to obtain such evidence, to include by submitting inquiries to appropriate records repositories and by requesting additional information from the Veteran, if needed. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ S.C. KREMBS 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).