Citation Nr: 1005683 Decision Date: 02/16/10 Archive Date: 02/25/10 DOCKET NO. 06-39 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. The Veteran appeared at a Travel Board hearing at the RO in November 2009. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In an October 2005 report, the Veteran's private physician indicated that the Veteran was currently receiving Social Security disability benefits. VA has an obligation to obtain copies of all Social Security decisions and the records underlying those decisions. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). These records have not been associated with the claims folder. The Board notes that at the time of the original denial, the RO listed the issue as entitlement to service connection for an adjustment disorder (claimed as PTSD). In his March 2006 notice of disagreement, the Veteran listed the issue as service connection for PTSD/MD. In the November 2006 Statement of the Case, the RO listed the issue as service connection for an adjustment disorder (claimed as PTSD). In his December 2006 substantive appeal, the Veteran identified the issue as PTSD. As it relates to the Veteran's claim of service connection for PTSD, the Board has considered the recent holding of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), and has concluded that it is applicable here. In Clemons, the Veteran specifically requested service connection for PTSD; the Board narrowly construed the claim and denied service connection for PTSD based on the absence of a current diagnosis, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder. The Court, in vacating the Board's decision, pointed out that a claimant cannot be held to a "hypothesized diagnosis - one he is incompetent to render" when determining what his actual claim may be. The Court further noted that the Board should have considered alternative current conditions within the scope of the filed claim. Id. In this case, while the claim has been adjudicated by the RO and certified to the Board as a claim for service connection for PTSD, the Veteran has also been diagnosed on several occasions as having major depressive disorder, depression, and an adjustment disorder with mixed emotional features. Under Clemons, these other diagnoses are to be considered as part of the underlying claim. The RO has also not provided adequate notification addressing what is needed for a claim incorporating such diagnoses. This is significant because the statutory and regulatory provisions addressing PTSD claims, as contained in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), differ from the provisions addressing other service connection claims. See 38 C.F.R. §§ 3.307, 3.309. Corrective notification action, as well as further adjudication, is thus needed. 38 C.F.R. §§ 3.159(b), 19.9. As it relates to the Veteran's claim of service connection for a psychiatric disorder, the Board notes that in his original claim, the Veteran indicated that as a result of the many injuries he suffered during his military service he was afflicted with a severe and chronic nervous condition; severe and chronic depression; nightmares and panic attacks; and was in constant fear of losing his life or becoming paralyzed. The Board notes that service connection is currently in effect for tinea versicolor and pedis, rated as 60 percent disabling; postoperative injuries to his left and right knees, each rated as 10 percent disabling; and a scar to his right leg, rated as noncompensable. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. The regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a non-service-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Although the Veteran was afforded a VA examination in November 2005, wherein he was diagnosed with an adjustment disorder with mixed emotional features, with the examiner indicating that while the Veteran did endorse some features of PTSD he did not meet the criteria for PTSD, he did not discuss the etiology of the diagnosed adjustment disorder and its relationship to his period of service or his service- connected disabilities. The Board also observes that the Veteran has been diagnosed as having PTSD on numerous occasions subsequent to the November 2005 VA examination. The Board further notes that the Veteran has been diagnosed as having depression on numerous occasions subsequent to the November 2005 VA examination. As a result of the foregoing, an additional VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal, now characterized as entitlement to service connection for a psychiatric disorder, to include PTSD. This letter must inform the Veteran of the information and evidence necessary to substantiate the claim, in terms of 38 C.F.R. §§ 3.307, 3.309, and 3.310 and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 2. Contact SSA and obtain copies of all decisions pertinent to the Veteran's claim for SSA benefits, as well as the medical records relied on concerning that claim. 3. The Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of any current psychiatric diagnoses. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file. All tests and studies deemed necessary by the examiner should be performed. A multi-axial diagnosis should be rendered. For each psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosed disorder is etiologically related to the Veteran's period of active service. If not, is it at least as likely as not that any service-connected disorder caused or aggravated (permanently worsened) any current psychiatric disorder? The examiner should provide rationales for these opinions. 4. Then, the claim for service connection for a psychiatric disorder, to include PTSD, should be readjudicated. If the determination remains unfavorable, a Supplemental Statement of the Case should be given to the Veteran and his representative. This Supplemental Statement of the Case must contain 38 C.F.R. §§ 3.307, 3.309, and 3.310. The appellant has the right to submit additional evidence and argument on the matter or 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. 2009). _________________________________________________ MARY GALLAGHER 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) (2009).