Citation Nr: 1815772 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-30 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and adjustment disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Air Force from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for PTSD. The appellant filed a timely Notice of Disagreement (NOD), received in February 2014. A Statement of the Case (SOC) was issued in July 2014. A timely substantive appeal was received in August 2014. The appellant was afforded a video hearing before the undersigned in August 2017. A transcript is of record. In light of the appellant's contentions and the evidence of record, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and adjustment disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant's service treatment records include a March 1968 clinical note which indicates that he was referred for complaints of nervousness. He was noted to have recently been separated from his wife and had some financial problems. He was noted to undoubtedly be bored on the job based upon his Air Force Qualification Test (AFQT) scores and his manual labor assignment. Examination was negative for any instability that would cause unreliability. On his May 1970 Report of Medical History, the appellant denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. He denied having been a patient in a mental hospital or sanitarium. In a Statement in Support of Claim received in February 2013, the appellant stated that he had not seen a doctor, but felt he should because of trouble sleeping, exaggerated startle response, a dislike of being around people, and anger issues. In a Statement in Support of Claim for Service Connection for PTSD, received in February 2013, the appellant reported that he had been part of the Security Police Squadron in Puerto Rico from April 1968 to July 1970. He explained that his unit was called up as a strike force in case the base ever came under attack. He noted that there were contemporaneous terrorist attacks in Puerto Rico and terrorists were trying to get over the fence onto the base. He stated that they had to respond to put down a terrorist on one occasion. He explained that, although there were other instances, this was the event he remembered most clearly. In a Statement in Support of Claim received in April 2013, the appellant stated that he has tried to block out stressful events from his mind. He stated that a terrorist group attacked Ramey Air Force Base between March 1968 and July 1970. Although he was unsure of the exact date, he thought such may have occurred in 1969, just after he had been promoted to sergeant. He did not believe any of his comrades were wounded in the incident. He remembered that the terrorist was captured rather than killed. He remembered being on special alert and feeling threatened by the terrorists. In his NOD, received in February 2014, the appellant explained that he did not like going to doctors and tried to avoid taking medication if possible. He explained that, while stationed in Puerto Rico, it was a stressful time due to riots and attacks. He had to keep people off the base as part of his duties. He endorsed memory problems, anger problems, and flashbacks. In a statement received in April 2014, the appellant endorsed symptoms including flashbacks of being treated poorly upon return to the United States, upsetting dreams, avoidance of talking or thinking about war, emotional numbness, avoidance of previously-enjoyed activities like hunting and socializing, memory problems, difficulty concentrating, difficulty getting close to others, irritability, anger, feelings of guilt and shame, trouble sleeping, exaggerated startle response, hallucinations, sadness, crying, rapid breathing, nausea, detachment, feelings of mistrust, and headaches. A statement from the appellant's wife was received in February 2014. She stated that the appellant did not talk about his active service, except to tell her many years prior that it had been stressful and that he did not want to talk about it. He told her he threw his uniform away upon return based on how returning veterans were treated in the Vietnam era. He seemed to be a different person following his service. She thought he had some repressed memories. He is often on edge and blows up for no reason, yelling at whoever is nearby. She described him as unpredictable. He throws things when upset. He has trouble sleeping, and experiences nightmares and flashbacks. In his substantive appeal, received in August 2014, the appellant stated that he feared for his life while stationed in Puerto Rico because of numerous incidents while there was a push for independence. He stated that people were blowing up cars and destroying equipment. During his August 2017 Board hearing, the appellant explained that, following separation, he became irritable, did not like being around people, only slept two to four hours per night, and was easily agitated about things. He explained that, while stationed in Puerto Rico, he was on a security strike team which had to guard munitions and B-52 bombers. He stated that he has blocked out most of what occurred while he was on active duty. Following separation, the appellant did not seek treatment for his symptoms. He stated that he did not really notice symptoms until five to seven years following separation, although minimal symptoms started about one year prior. He stated that he felt they were nothing to be concerned about at the time. The appellant's wife testified that she knew the appellant prior to his deployment to Puerto Rico and that she noticed changes following his return. She stated that he did not talk about Puerto Rico upon his return. She observed his symptoms worsening over time. The appellant stated that he had not been diagnosed with a mental disorder, either by VA or private clinicians. However, he noted that he was service-connected for hearing loss and tinnitus and that his hearing problems may have caused his depression and anxiety, as his hearing disabilities were severe and caused a great deal of problems at home. His wife indicated that she concurred with the appellant's assessment. An October 2017 clinical note from Dr. M.A. indicates that the appellant has been diagnosed with depression, major, recurrent, moderate. No etiological opinion was offered. An October 2017 Disability Benefits Questionnaire (DBQ), completed by a private clinician, indicates that the appellant has been diagnosed with adjustment disorder, mixed, and insomnia. No etiological opinions were offered. VA's duty to assist includes obtaining a medical examination or opinion when such is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the evidence recently submitted by the appellant, there is now competent medical evidence of current psychiatric diagnoses. Moreover, the appellant has competently reported in-service events and experiencing symptoms since separation. Alternatively, he has suggested that his current psychiatric disability may be due to his service-connected hearing loss and tinnitus. However, he has not yet been afforded an examination to determine the nature and etiology of his psychiatric disability. Thus, he should be afforded such upon remand. McLendon, 20 Vet. App. at 79. Further, although the October 2013 rating decision and July 2014 SOC reference PTSD screenings in VA medical records, such records are not currently associated with the claims file. Thus, upon remand, any and all outstanding VA medical records should be associated with the claims file. Finally, the Board notes that the record contains March 2013 and September 2013 Formal Findings of a lack of information required to corroborate stressors. As the appellant was unable to provide a 60-day time frame for his reported stressors as requested, the RO determined that there was insufficient information to request assistance from the U.S. Army and Joint Services Records Research Center. In Gagne v. McDonald, 27 Vet. App. 397, 403 (2015), however, the U.S. Court of Appeals for Veterans Claims (Court) held that limiting a request for records to a 60-day window was simply an effort to ease the workload of employees tasked with searching records, and did not establish that a search would be futile, or that the records did not exist or were not in the custodian's possession. Rather, the Court in Gagne found that multiple JSRRC requests were required as a result of information of record relating to an alleged stressor that occurred sometime during that Veteran's 13-month period of deployed service. In this case, the appellant's service personnel records show that he served as a security guard at Ramey Air Force Base from March 1968 to October 1968, and as a base policeman from October 1968 to July 1970. As set forth above, he recalls that the base was attacked by terrorists during this period, including one incident in 1969 in which his unit captured a terrorist after a terrorist attack. The Board finds the facts in this case to be analogous to those in Gagne and that a remand is required for additional development. Accordingly, the case is REMANDED for the following action: 1. Associate any and all outstanding VA medical records with the claims file. (Although the RO referenced PTSD screenings in the rating decision and SOC, such are not present in the claims file). 2. After obtaining any additional information from the appellant, undertake appropriate efforts to determine whether there is any evidence available to corroborate the stressor reported by the appellant, particularly the 1969 terrorist attack. 3. Afford the appellant an appropriate examination to determine the nature and etiology of any current psychiatric disorder, to include PTSD, depression, and adjustment disorder. Access to the appellant's electronic VA claims file should be made available to the examiner for review in connection with the examination. After reviewing the record and examining the appellant, the examiner should delineate all current mental disorders exhibited by the appellant, if any. Diagnoses should be rendered in accordance with DSM-5. If PTSD is diagnosed, the examiner should specify the stressors upon which the diagnosis is based. If any other psychiatric disability is diagnosed, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (50% or greater probability) that any psychiatric disability identified on examination is: (a) causally related to the appellant's active service or any incident therein, including the March 1968 complaints of nervousness; (b) causally related to or aggravated by the appellant's service-connected hearing loss or tinnitus. In providing the requested opinions, the examiner should consider the relevant evidence of record, including the October 2017 private diagnoses of depressive disorder, adjustment disorder and insomnia, and the appellant's and his wife's lay reports of symptomatology, as detailed above in this REMAND. 4. After completing the above actions, and any other development deemed necessary, readjudicate the claim. If the benefit sought remains denied, a Supplemental Statement of the Case must be provided to the appellant and his representative. After the appropriate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ K. Conner 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).