Citation Nr: 1424336 Decision Date: 05/30/14 Archive Date: 06/06/14 DOCKET NO. 10-01 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right big toe disorder, to include status post right hallux toenail matrixectomy and onychomycosis (claimed as ingrown toenail of the right big toe). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1967 to August 1970 and from September 1972 to September 1976; during the Veteran's first period of service, his Form DD-214 demonstrates that he was awarded the Combat Infantryman Badge for his participation in combat in the Republic of Vietnam during that period. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD and a right big toe disorder. The Veteran timely appealed that decision. The Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge in April 2014; a transcript of that hearing is associated with the claims file. The Board notes that initially the Veteran testified before a different Veterans Law Judge in October 2012; however, due to technical issues, a transcript of that hearing was unable to be made. As there is no evidence in the claims file with regards to the prior hearing, and the Veteran subsequently had a second hearing before a Veterans Law Judge, the Veterans Law Judge who held the October 2012 hearing will no longer participate in the adjudication of this decision in light of the technical issues and the subsequent hearing. On appeal, the Board has broaden the PTSD claim on appeal in order to encompass any psychiatric disorder, as instructed in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held 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 the other information of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As an initial matter, the Board notes that the Macon Vet Center submitted an October 2012 letter indicating that the Veteran was being treated at that facility. Those records have not been obtained and are not currently associated with the record. In light of VA's duty to assist, the Board must remand the psychiatric claim at this time in order to obtain those records. See Dunn v. West, 11 Vet. App. 462, 466 (1998) (Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records). Furthermore, any other ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, on remand, the Board notes that the Veteran should be afforded another VA psychiatric examination in order to determine what, if any, psychiatric disorder is present and whether such disorder is related to military service, to specifically include his combat service in the Republic of Vietnam and any fear of hostile military activity therein. The Board notes that the Veteran's previous June 2008 VA examination did not consider any other psychiatric disorders other than PTSD, and seems to be inconsistent with the Veteran's reports of symptomatology throughout the claims file. Additionally, it appears that the Veteran has been treated at the Macon Vet Center for psychiatric issues since that examination, which portends a potential worsening of that condition such that a psychiatric disorder may potentially be diagnosable at this time. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Finally, with regards to the right big toe claim, there is evidence in his service treatment records of treatment for an ingrown right toenail in July and October 1974; the Veteran is currently shown to have had a right hallux toenail matrixectomy surgical procedure and to have onychomycosis of the right big toenail in his VA treatment records. The Veteran has contended that his right big toe disorder is related to service, particularly "jungle rot" or a fungal infection that he suffered while in the Republic of Vietnam. No VA examination has been afforded to the Veteran at this time. A remand is necessary as the low threshold for obtaining a VA examination and medical opinion has been met in this case. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Dublin VA Medical Center, or any other VA medical facility that may have treated the Veteran, since August 2009 and associate those documents with the claims file. 2. Obtain any outstanding treatment records from the Macon Vet Center and associate those documents with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his right big toe and psychiatric disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Schedule the Veteran for a VA psychiatric disability examination to determine whether any current psychiatric disorder is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found. The examiner should specifically determine if the Veteran suffers from PTSD under the DSM-IV as required by 38 C.F.R. § 4.125. If the Veteran is shown to have PTSD, the examiner should specifically indicate the stressor(s) from which that diagnosis stems. If the Veteran does not meet the criteria for PTSD, the examiner should explicitly discuss which criteria for diagnosis are missing. If PTSD is diagnosed, the examiner should opine whether it more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include his combat service in the Republic of Vietnam and any fear of hostile military activity therein. For purposes of this opinion, the examiner should take as conclusive fact that the Veteran served in combat in the Republic of Vietnam, as demonstrated by his Combat Infantryman Badge; the examiner should note that VA has conceded fear of hostile military activity as well. For each psychiatric disorder found other than PTSD, the examiner should provide an opinion regarding whether each disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include the conceded combat service and fear of hostile military activity therein. The Veteran's lay statements regarding symptomatology he experienced during and after service, to include his statements of continuity of symptomatology should also be discussed. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for a VA podiatric examination in order to determine the nature and etiology of any right big toe disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the result reported in detail. After review of the claims file and examination of the Veteran, the examiner should identify any right big toe disorders found, to include onychomycosis and/or any residuals of his right hallux maxtrixectomy. The examiner should then opine whether any right big toe disorders found, to include onychomycosis of the right big toenail, more likely, less likely or at least as likely as not (50 percent or greater probability) began in or are otherwise the result of military service, to include the July and October 1974 treatments for an ingrown right big toenail, and/or any exposure to fungus/"jungle rot" while in the Republic of Vietnam. The Veteran's lay statements regarding continuity of symptomatology both during and since discharge from service should be discussed. The examiner should also address any other relevant evidence in the claims file, as appropriate. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for an acquired psychiatric disorder, to include PTSD, and a right big toe disorder. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters 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. 2013). _________________________________________________ J. A. MARKEY 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) (2013).