Citation Nr: 1513263	
Decision Date: 03/27/15    Archive Date: 04/03/15

DOCKET NO.  14-24 607A	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Allen Gumpenberger, Agent


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel


INTRODUCTION

The Veteran served on active duty from September 1988 to September 1993.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.  Thereafter, the Veteran requested the matter be transferred to the RO in Boston, MA.  The RO in Boston, MA issued a Statement of the Case (SOC) in June 2014.  The Veteran, at that time, had relocated to Florida.  All subsequent communications from the Veteran and his representative, to include his substantive appeal, were sent to the RO in St. Petersburg, Florida.  

The issue on appeal requires clarification.  The Veteran originally claimed entitlement to service connection for PTSD specifically in 2011.  Medical records, however, indicated varying diagnoses, to include a panic disorder with agoraphobia.  The Veteran also specifically sought service connection for a panic disorder, but subsequently withdrew this claim in January 2014 indicating it was already being worked on with his current PTSD appeal.  The RO, thereafter, appears to have limited the appeal to PTSD alone.  The Board disagrees.  

In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Id.  The medical evidence clearly reflects other diagnoses aside from PTSD.  The Veteran's January 2014 withdrawal, moreover, makes it clear he merely wanted to continue his current appeal rather than starting a new claim.  A subsequent statement from the Veteran's representative, dated March 2014, characterizes the issue as "entitlement to service connection for an acquired psychiatric diagnosis, to include PTSD."  Thus, the claim cannot be considered confined to PTSD alone. 

A claim seeking entitlement to pension was filed in February 2015, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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


REMAND

The Veteran's claim thus far has been denied because of a lack of confirmed diagnosis related to a confirmed in-service stressor.

The Veteran claims he has PTSD primarily, but also panic/anxiety/depression disorders due to in-service events.  Specifically, he details the events of a plane accident that occurred sometime between May 1991 and September 1991 resulting in the death of one or two people.  He was stationed on the USS Forrestal at the time, and he claims his work with the propeller of the ship caused the death of at least one of the pilots.  

The Veteran's description of the event has somewhat varied.  On his initial claims form, he indicates a plane crash resulted in two pilots ejecting.  While one of the two pilots was recovered safely with injuries, the other pilot ejected in the sea and his parachute was sucked into the ship's propeller, causing his death.  The Veteran says he worked the propeller and felt partially responsible for the death.  In other statements, the Veteran indicates both pilots died and even though he knows it was not his fault, he feels guilty.  

The RO, in attempting to verify the stressor, confirmed the Veteran's duties on the USS Forrestal in 1991.  The JSRRC report dated August 2012, indicates confirmation of a plane accident in October 1991, but involving only one pilot, who survived.  Looking into the web link provided by JSRRC, the Board notes there is another plane accident described on July 17, 1991 that coincides more closely with the Veteran's description.  That is, an aircraft crashed into the sea in international waters while on a routine training mission forcing two pilots to eject before the crash.  One pilot was recovered with injuries, but the other pilot was not recovered by the USS Forrestal. The manner of death was not detailed and, indeed, neither the body nor the debris from the plane was ever recovered.  
The Veteran's representative takes issue with the need of objective verification claiming the issue should be granted based on the Veteran's lay description alone.

While the Veteran is competent to describe in service accidents and duties performed, with regard to PTSD specifically, credible supporting evidence is required showing that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  Lay evidence may be sufficient where the stressor is related to the Veteran's fear of hostile military or terrorist activity.  Id. § 3.304(f)(3).  That is not the case here and, therefore, the Veteran's PTSD stressors must be verified with credible supporting evidence.  Id.  

The same verification is not needed, however, for other psychiatric diagnoses.  

Regardless of the diagnosis, in light of the objective evidence described above, the Board finds further verification is not needed regarding the in-service incident.

Rather, a remand is necessary here because of the ambiguity in the record regarding the Veteran's current diagnosis and etiology.  VA outpatient treatment records from 2009 to 2013 include varying diagnoses to include "anxiety disorder," "panic disorder with agoraphobia," "depression," and PTSD."  With regard to PTSD in particular, however, the evidence ambiguously confirms and rules out PTSD almost monthly.  In April and May 2012, for example, VA outpatient treatment records indicate a diagnosis of PTSD and ongoing treatment for PTSD related to survivor guilt after an aircraft carrier incident resulting in two killed soldiers.  In July 2012, however, the VA physician finds that the Veteran was tested for PTSD, and PTSD was officially ruled out.  At that time, the Veteran received treatment for a panic disorder and anxiety.  In October 2012, the Veteran was accepted into a six week program for treatment of PTSD.  He was admitted for this program from December 2012 to January 2013.

The Veteran also submitted a statement from a VA physician dated March 2013.  That statement only diagnosed the Veteran with panic disorder and anxiety attacks.  The VA physician also noted the USS Forrestal incident.  Since this was only an initial visit, the VA physician found it "hard" to "make the complete connection," but opined that the Veteran's increased symptoms were "more likely than not" related to his Naval service.  

The Veteran was never afforded a VA examination to ascertain whether any psychiatric diagnosis is related to his military service.  In light of the evidence described above, a VA examination is warranted.

The RO/AMC must also take this opportunity to obtain further VA outpatient treatment records from January 2013 to the present.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. The RO should ensure that the Veteran is provided with all appropriate notice as to the issue on appeal, to include the evidence necessary to substantiate a claim of entitlement to service connection for any acquired psychiatric condition (to include, but not limited to posttraumatic stress disorder).  

2. Obtain VA outpatient treatment records from January 2013 to the present. All efforts to obtain VA records should be fully documented.

3.  After the above is completed and records are obtained to the extent available, schedule the Veteran for an appropriate psychiatric VA examination to determine the nature and etiology of any and all psychiatric disorders found, to include PTSD and panic disorder.  The claims folder must be reviewed by the examiner.  All necessary special studies or tests are to be accomplished.  

The examiner is directed, for purposes of this examination, to accept as true the 1991 in-service airplane carrier accident described by the Veteran while stationed aboard the USS Forrestal. 

Based on the examination and review of the records, the examiner should identify all acquired psychiatric diagnoses found and, as to each diagnosis, render an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the diagnosis is attributable to the Veteran's military service in light of the described in-service stressor, treatment since service, and described symptoms since service.  

A diagnosis of PTSD should be confirmed or ruled out.  If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis, to include the specific stressor(s) resulting in the disorder.  If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for the diagnosis.  

The examiner must provide a complete rationale for any opinion expressed.

4. The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.

5.  Thereafter, readjudicate the Veteran's issue remaining on appeal considering entitlement to service connection for any acquired psychiatric disorder, to include PTSD.  If the claim remains denied, provide the Veteran a supplemental statement of the case (SSOC). 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).

The 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
ROBERT C. SCHARNBERGER
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) (2014).


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