Citation Nr: 1648562	
Decision Date: 12/08/16    Archive Date: 01/06/17

DOCKET NO.  14-29 833	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


Entitlement to service connection for an acquired psychiatric disorder claimed as posttraumatic stress disorder (PTSD) due to an in-service personal trauma. 


Appellant represented by:	Disabled American Veterans


A. Diaz-Ferguson, Associate Counsel


The Veteran served on active duty from November 2002 to April 2004.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System. 


The Board finds additional development is required before the Veteran's claim is decided. 

The Board notes the Veteran has initiated a claim for service connection for a psychiatric disorder, specifically claimed as PTSD, anxiety, and depression.   In it, he states that these disorders resulted from his military service. 

VA must provide a medical examination or obtain medical opinion when there are (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2) (West 2014), 38 C.F.R. § 3.159 (c)(4)(i) (2016).  The third prong, which requires the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83.

In this regard, the record does not show a current diagnosis of PTSD, but the Veteran has not been afforded a VA medical examination for his claim.  The Board notes the Veteran has continuously asserted he experienced psychiatric problems.  In a March 2013 statement, the Veteran stated he suffered mild flashbacks of the assault, as well as dreams in which he was attacked "a lot and often."  The Veteran stateed he had attendance problems at work due to lack of sleep and offset mood.  He also stated that while he has always consumed alcohol, his intake level have increased dramatically.  The Veteran goes on to say he has low regard for any kind of authority and engages in dangerous behavior due to his mood.  A June 2013 statement asserts the Veteran began using alcohol and marijuana to cope.  Likewise, an October 2014 statement indicates the Veteran was sleeping on a buddy's couch at the time of the statement, and that the Veteran's personality has changed after the incident to the point where he refuses to make long-term plans, experiences paranoid episodes, and often secludes himself from friends and family.  The buddy describes the Veteran as being happy one moment and becoming jumpy and anxious in the next moment.  The statement also notes the Veteran is now short-tempered and hostile.  These symptoms are clearly identifiable by lay observation, thus, the Board finds the Veteran and the buddies competent to assert them.  The Board also finds the statements credible as they are consistent throughout the record and the symptoms are corroborated by private medical records.

As for the second prong of analysis, the Veteran asserts, in his March 2013 statement, he was involved in a physical altercation with his civilian girlfriend in January 2004, in which she struck him repeatedly and attacked him with a high-heeled shoe.  Service Treatment Records (STRs) and the Veteran's separation exam are negative for any psychiatric treatment or symptoms.  Service treatment records show the Veteran did complete a substance abuse re-orientation program in October 2013, but there was no diagnosis of alcoholism or drug abuse.  The Veteran's DD Form 214 indicates he was discharged under honorable conditions for misconduct.  The Veteran's assertion of a physical assault is corroborated by the April 2004 memorandum recommending discharge, which cites the physical assault incident as a basis for discharge.  The Board also notes the Veteran repeatedly points to a report from the Office of Special Investigations on the assault, which is not within the record.  While the Board acknowledges inconsistencies between the Veteran's statements and personnel records as to whom was at fault for the incident, the Board is satisfied that there is competent evidence of an event in service. 

In his March 2013 lay statement the Veteran indicates that his symptoms have been ongoing.  The June 2013 buddy statement, which was written by a fellow airman and friend of the Veteran, notes negative changes in the Veteran's life after the incident and discharge from the military, including time spent in jail, increased alcohol and drug use and depression.  The third prong of analysis is a low threshold, which the Board finds the Veteran has met.
Without a proper psychiatric examination and diagnosis of PTSD the Board finds there is not sufficient medical evidence to decide the Veteran's claim.  In light of the foregoing, the Board finds a VA examination is warranted.     

Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following action:

1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include any more recent treatment records related to the claimed disability.  Specifically, the incident report from the OSI, which the Veteran has alluded to in the record, should be obtained.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 

2. Then, the RO or the AMC should afford the Veteran a VA examination by a VA psychiatrist or psychologist to determine the etiology of all acquired psychiatric disorders present during the period of the claim. 

All pertinent evidence of record must be made available to and reviewed by the examiner.  Based on a review of the Veteran's pertinent history and the examination, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim.  

A diagnosis of PTSD should be confirmed or ruled out.  If the examiner determines PTSD has not been present during the period of the claim, the examiner should explain why a diagnosis of PTSD was not warranted.  In this regard, the examiner should fully discuss all relevant evidence.  If a PTSD diagnosis is warranted, the examiner should identify the elements supporting the diagnosis. 

With respect to each acquired psychiatric disorder, other than PTSD, that has been present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service, to include as being consequentially related to the Veteran's reports of a physical assault, with subsequent psychiatric manifestations thereafter. 

A complete rationale for all proffered opinions must be provided.  If the examiner is unable to provide any required opinion, he/she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

3. The RO or the AMC should undertake any other development it determines to be warranted.

4. Then, the RO or the AMC should readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the board intimates no opinion as to any final outcome warranted. 

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See 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.A. §§ 5109B, 7112 (West 2014).

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) (2016).


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.