10-22 138
10-22 138
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served 1988–1991 and 1997–1999; filed for psychiatric service connection (including PTSD) stemming from service events and post-service symptoms.
- Earlier claim related to first period of service was denied and became final (Jan 1997); VA and Board treated the later claim as reopened and pursued service connection for second period of service.
- Medical records show a September 1994 VA diagnosis of depressive disorder NOS; pre-enlistment (Mar 1997) exam for second tour noted psychiatric normality. A February 1999 Fort McClellan mental-health entry appears referenced in STRs but the corresponding records are missing.
- Post-service VA records (2005–2012) document depressive symptoms, psychotic episodes, hospitalizations, inconsistent PTSD screening results, and allegations of an in-service stressor (Panama or Saudi Arabia incidents) without contemporaneous corroboration.
- The Regional Office denied PTSD/mental-condition claims in Sept 2009 for lack of a PTSD diagnosis and absence of corroborated in-service stressor; the Board remanded several times for development, including attempts to obtain the missing Feb 1999 records.
- Because the missing service-era mental-health record could be material and the record shows possible current psychiatric disability with inconsistent documentation, the Board found further development (VA psychiatric exam/opinion and updated records) necessary and remanded the claim to the RO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to service connection for an acquired psychiatric disorder (including PTSD) related to second period of service | Veteran asserts current psychiatric disorder caused by in-service traumatic events and prior treatment references (including Feb 1999 mental-health entry) | RO contends lack of PTSD diagnosis and insufficient corroboration of an in-service stressor; no nexus shown to service | Remanded: insufficient evidence in file and missing service-era record; VA must obtain records and provide a comprehensive psychiatric exam/opinion addressing diagnosis, chronicity, nexus, and effect of Feb 1999 treatment entry |
| Whether VA satisfied VCAA/ McLendon duty to provide a VA exam | Veteran argues record shows current symptoms and possible service relation requiring VA examination | RO previously denied but Board notes gaps and missing records mean development incomplete | Remanded: Board ordered VA to afford a comprehensive psychiatric examination and rationale per McLendon/VCAA criteria |
| Whether September 1994 depressive disorder represents a chronic condition from first tour or transitory resolving prior to second tour | Veteran points to 1994 diagnosis and later mental-health notes suggesting continuity | RO relied on lack of contemporaneous STRs and pre-enlistment normal exam in 1997 | Remanded: examiner to opine whether 1994 disorder persisted, whether it was incurred in first tour, and whether it was aggravated (or resolved) before second tour, with rationale |
| Whether missing Feb 1999 Fort McClellan treatment record is material and obligates heightened development/benefit of the doubt | Veteran cites referenced February 1999 mental-health evaluation as potentially linking symptoms to service | RO was unable to locate the record and considered evidence insufficient | Remanded: Board ordered continued record searches, an exam, and careful consideration of missing evidence and benefit-of-the-doubt where applicable |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements for service connection)
- Caluza v. Brown, 7 Vet. App. 498 (Vet. App.) (VA adjudication and medical nexus requirements)
- Wagner v. Principi, 370 F.3d 1089 (Fed. Cir.) (burden to rebut presumption of soundness/aggravation analysis)
- Carpenter v. Brown, 8 Vet. App. 240 (Vet. App.) (personality disorders and superimposed mental conditions)
- Monroe v. Brown, 4 Vet. App. 513 (Vet. App.) (service-connection principles for mental disorders)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App.) (VA duty to provide examination when evidence suggests a current disability possibly related to service)
- Wells v. Principi, 326 F.3d 1381 (Fed. Cir.) (competency of evidence needed to trigger VA duty to assist)
- Cuevas v. Principi, 3 Vet. App. 542 (Vet. App.) (heightened obligation to explain findings when STRs are unavailable)
- Pruitt v. Derwinski, 2 Vet. App. 83 (Vet. App.) (procedural protections when records missing)
- O'Hare v. Derwinski, 1 Vet. App. 365 (Vet. App.) (remand and duty to develop when evidence is incomplete)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App.) (appellant’s right to submit additional evidence after remand)