Citation Nr: 1761171
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 04-43 822 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, and panic attacks.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel

INTRODUCTION

The Veteran served on active duty from September 1968 to May 1970, including service in the Republic of Vietnam.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

In October 2014, the Board remanded the claim to the agency of original jurisdiction (AOJ) to reschedule the Veteran for a requested Board hearing. In May 2015, the Veteran testified before a Veterans Law Judge. In June 2015, the Board notified the Veteran that a hearing transcript could not be produced due to audio malfunctions. (The Board did not locate a copy of this letter in the Veteran’s electronic claims file). The letter informed him of his options for another hearing and that the Board would assume that he did not want another hearing if he did not respond to the letter within 30 days. The Veteran did not respond to the letter.

In February 2016, the Board again remanded the claim to the AOJ for additional development. At that time, the Board expanded the claim to encompass other reported manifestations of psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record).

After completing the requested development, the AOJ continued to deny the claim as reflected by an August 2017 supplemental statement of the case (SSOC).

Finally, in September 2017, the Board notified the Veteran that the Veterans Law Judge who presided at his May 2015 hearing was no longer available to decide the claim and offered him the opportunity to appear for another hearing. See 38 U.S.C.A. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017) (generally, the Veterans Law Judge who conducts the hearing must participate in making the final determination of the claim involved). In October 2017, the Veteran declined to appear for another hearing.

The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.

REMAND

The Veteran contends he has PTSD or other psychiatric disability due to events during military service. One of his reported military stressors has been verified. Specifically, a base camp in Phuoc Vinh, Vietnam was subjected to an enemy rocket attack in May 1969. The Veteran contends that he has experienced nightmares or a sleep disorder and panic attacks ever since that event.

The particular requirements for establishing service connection for PTSD are separate and distinct from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f) (2017).

The Veteran’s verified military stressor is the sort that involves fear of hostile military activity. Consequently, if a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. Id.

The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). 38 C.F.R. § 4.125(a). The Board notes that the Fifth Edition of the DSM (DSM-5) recently replaced the Fourth Edition of the DSM (DSM-IV). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to now refer to certain mental disorders in accordance with the DSM-5. As the provisions of the interim final rule only apply to applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014, the DSM-IV is applicable to claims certified to the Board prior to that date. The Veteran’s claim for service connection for PTSD was certified to the Board prior to August 4, 2014, and is properly evaluated under DSM-IV diagnostic criteria.

The Veteran was afforded a VA examination in July 2017. Unfortunately, the examination report reflects that the examining psychologist used DSM-5 diagnostic criteria rather than DSM-IV criteria to evaluate the Veteran. Therefore, a remand is required to provide the Veteran with a VA examination that uses DSM-IV. The AOJ must instruct the VA examiner to use the DSM-IV diagnostic criteria when evaluating the Veteran.

To ensure the record before the Board is complete, the AOJ also should obtain ongoing treatment records dating since April 2016 from the Bedford VA Medical Center (VAMC), or other related clinics. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1. Obtain ongoing treatment records from the Bedford VAMC and related clinics dating since April 2016.

2. Arrange for a VA examination to evaluate the Veteran’s claimed acquired psychiatric disability, to include PTSD, depression, anxiety, and panic attacks. The electronic claims file and a complete copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that the claims file has been reviewed. All necessary testing should be accomplished, to include any psychological testing, and reports of any testing should be associated with the examination report.

Based on the date of the Veteran’s claim, the examiner is advised that the examination MUST use the diagnostic criteria from DSM-IV.

After reviewing the claims file and examining the Veteran, the examiner should identify all psychiatric disorders found on examination. With respect to each diagnosed psychiatric disorder, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the psychiatric disability had its onset during service, or is otherwise medically related to service.

In addition, for any psychoses found on examination, the examiner the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, manifested to a compensable degree within one year of the Veteran’s May 1970 separation from service, or is otherwise medically related to service.

A medical analysis and rationale are to be included with all opinions expressed. In addressing the above, the examiner must consider the Veteran’s confirmed military stressor that involved experiencing an enemy rocket attack in May 1969 in Vietnam. The examiner should explain whether any diagnosed PTSD or other acquired psychiatric disability (diagnosed in accordance with DSM-IV) is attributable to that event.

3. After undertaking any other development deemed appropriate, the AOJ should readjudicate the claim of entitlement to service connection for an acquired psychiatric disorder. If the benefit sought is not granted in full, the Veteran and his representative should be furnished with an SSOC and afforded an appropriate period of time for response. Thereafter, the case should be returned to the Board, if in order.

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 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.A. § 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).

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