Citation Nr: 1226381 Decision Date: 07/31/12 Archive Date: 08/03/12 DOCKET NO. 11-16 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1969, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey that denied the benefit sought. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The record shows the Veteran has suggested that he has received psychiatric treatment in the 1970's related to stress from Vietnam, participated in marriage counseling in the 1990's, and was treated for anxiety between 2004 and 2006. See October 2010 Statement in Support of Claim received November 2011; see also VA November 2010 VA Examination Report. He stated that he was treated by his primary care physician who prescribed him Buspar, and then Effexor for his anxiety. The RO did not indicate, and the record does not reflect, that it had satisfied its duty to assist by attempting to retrieve these records. Given this, the Board finds that on remand, the RO should request that the Veteran specifically identify the treatment received, and attempt to obtain the records, including those from his primary care physician, and from Brendan Buchmelter, the licensed social worker who treated him for anxiety. The most recent VA treatment records are only current as of December 2007. As there potentially are outstanding private and VA medical records may be relevant to the appeal, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that relevant VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Further, the Board notes that the VA examiner appears to have made inconsistent statements regarding the etiology of the Veteran's symptoms; on one hand the examiner stated that the Veteran exhibited indirect discomfort and anxiety or depression likely as secondary to his service-connected prostate cancer, and on the other, the examiner states that his symptoms fail to rise to a diagnostic level that would represent a psychiatric diagnosis. Additionally, the language in the VA examination report appears to indicate the that the examiner was only considering whether the Veteran had PTSD, rather than all psychiatric conditions found to be present. Lastly, the examiner's statements regarding the Veteran's treatment history are not entirely consistent with the record. Given the abovementioned facts, the Board finds that another VA examination and opinion is necessary to decide the Veteran's claim. Finally, given the nature of the Veteran's claim, competent and credible lay statements from him, his family, friends, and others are to be considered if they relate to symptoms or facts of events that the lay person observed. Opportunity to submit such statements should be provided. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his claimed psychiatric condition/s, in particular those from his primary care physician, and Brendan Buchmelter, the licensed social worker who treated him for his anxiety. With any necessary assistance, the RO should attempt to obtain copies of the identified records. In any event, the RO should obtain copies of the Veteran's VA outpatient treatment records dated since December 2007. 2. Notify the Veteran that he may submit lay statements from himself, as well as from individuals who have first-hand knowledge of his claimed psychiatric condition/s. He should be provided an appropriate amount of time to submit this lay evidence. 3. After associating any pertinent outstanding records with the claims file, arrange for an appropriate VA examination to determine the current nature and etiology of any psychiatric condition/s found to be present. Prior to examining the Veteran, the examiner should review the entire claims file, and consider all competent and relevant lay statements relating to the Veteran's condition/s. All necessary diagnostic testing should be performed, and all clinical findings should be reported in detail. Upon completion of the examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not any psychiatric condition/s found to be present, had its onset in service, or is otherwise linked to service. Additionally, the examiner is asked to answer the following questions: A.) Is it at least as likely as not (50 percent probability) that the Veteran's development of any psychiatric condition/s was caused by his service-connected prostate cancer? B.) If not, does the Veteran's service-connected prostate cancer cause an increase in the severity of any psychiatric condition/s? If so, is the increase beyond the natural progress of the condition/s? A complete rationale for any opinion expressed should also be provided. If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be included. 4. The RO should notify the Veteran that it is his responsibility to report for the VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include the denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. 5. Any further development as may become indicated upon the completion of the foregoing should be accomplished, and the Veteran's claim re-adjudicated. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, that claim should be returned to the Board for further review. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2011).