Citation Nr: 1006509 Decision Date: 02/22/10 Archive Date: 03/02/10 DOCKET NO. 07-27 670 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a claimed acquired psychiatric disorder; to include post traumatic stress disorder (PTSD) and anxiety disorder. 2. Entitlement to service connection for claimed gastroenteritis. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Daniels, Law Clerk INTRODUCTION The Veteran served on active duty from April 2003 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the RO The Veteran testified at a hearing before a Decision Review Officer at the RO in January 2008. A transcript of that proceeding is of record. In an August 2009 decision the Board remanded the claim to the RO for additional development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in a January 2010 via videoconference from the RO. A transcript of that proceeding is of record. The issue of service connection for an innocently acquired psychiatric disorder; to include posttraumatic stress disorder (PTSD) and anxiety disorder is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served on active duty from April 2003 to June 2006. 2. In January 2010 prior to the promulgation of a decision on appeal, the Board received notification in writing from the Veteran that she intended to withdrawal of her claim of service connection for gastroenteritis from appellate consideration CONCLUSION OF LAW The Veteran's appeal as to the claim of service connection for gastroenteritis is dismissed. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2009). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran in a written statement received at the Board in January 2010 expressed her intention to "terminate" her appeal of the claim of service connection for gastroenteritis. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal as to the claim of service connection for claimed gastroenteritis is dismissed. REMAND The August 2009 Board remand directed the RO inter alia, to obtain any outstanding service treatment records, to include any records related to mental health treatment and schedule the Veteran for a VA examination to determine if the Veteran had PTSD, and if it was at least likely as not related to service. It is noted that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. Furthermore, after a careful review of the claims folder, the Board finds that the Veteran's claim must be remanded for further action. In the present case, the RO has only addressed the question of service connection for PTSD. However, a review of the file suggests that the Veteran may also be suffering from other innocently acquired psychopathology. As noted in the prior remand, the service treatment records dated in July 2005, October 2005, and January 2006 reflect that the Veteran had been diagnosed with several mental health disorders, including generalized anxiety disorder; panic disorder; alcoholism; and adjustment disorder. They also reflect that she was prescribed Paxil and clonazepam and that she was receiving mental health treatment. The records of that mental health treatment, however, are not associated with the claims folders. Since they are pertinent to the claim for an acquired psychiatric disorder, any outstanding service treatment records, to include any records related to mental health treatment, must be obtained. See 38 C.F.R. § 3.159(c)(2) (2008). The Board notes that it is unclear from the record whether the Veteran currently has an innocently acquired psychiatric disorder in addition to the already identified substance abuse disorder. A January 2007 VA examiner diagnosed a substance abuse disorder but concluded that she did not meet the criteria for a PTSD diagnosis and that she currently was not experiencing "clinical levels of anxiety." An October 2007 VA treatment record reflects that the Veteran denied experiencing symptoms suggestive of anxiety or panic disorder in the previous five months. A September 2008 VA examination report reflects only a diagnosis of a substance abuse disorder but notes that the Veteran was experiencing "sub-clinical PTSD and other anxiety symptoms." However, the diagnoses of panic disorder are reflected in a May 2007 VA mental health treatment plan note and in VA treatment records dated in March 2008 and May 2008. Neither examination report adequately addresses those diagnoses. The Board observes that, in a recent case, the United States Court of Appeals for Veterans Claims (Court) explained that, reasonably, the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, whatever that is, causes him. The Court found that the Board's analysis of psychiatric disorders is not necessarily limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the evidence showing that the Veteran experiences psychiatric symptoms and in light of the diagnoses of panic disorder rendered by her VA mental health care providers, the Board finds that a new VA examination is necessary in order to determine the nature and etiology of any currently present psychiatric disability. See 38 C.F.R. § 3.159(c)(4). The Veteran is hereby advised that failure to report to the scheduled examination may result in denial of the claim. See 38 C.F.R. § 3.655 (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. In addition the Board finds that ongoing medical records should also be obtained. See 38 U.S.C.A. § 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). To ensure that all due process requirements are met the RO should also give the Veteran opportunity to present any additional information and/or evidence pertinent to the claim on appeal that is not already of record. The RO's notice letter should explain that the Veteran has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the Veteran to submit all evidence in her possession that is not already of record, and ensure that its notice to the Veteran meets the requirements of the recent decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). Accordingly, the remaining matter is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran by letter and request that she provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. The Veteran also should be informed that she may submit evidence to support her claim. The RO should obtain all of the Veteran's pertinent VA treatment records. The RO should obtain any outstanding service treatment records, particularly the Veteran's mental health records. All attempts to obtain these records should be documented in the claims folders. It should continue its attempts to obtain these records until it is reasonably certain that further attempts would be futile or that the records do not exist. The RO's letter should invite the Veteran to furnish all evidence in her possession, and identify what evidence is ultimately her responsibility to obtain. The RO's letter should clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of any innocently acquired psychiatric disorder, including PTSD, a panic disorder and an anxiety disorder. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. Any indicated tests or studies should be accomplished and all clinical findings should be reported in detail. Based on his/her review of the case, the examiner should opine as to whether the Veteran at least as likely as not currently suffers from an innocently acquired psychiatric disability to include PTSD, a panic disorder and an anxiety disorder that had its clinical onset during her recent period of active service. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 5. To help avoid a future remand, the RO must ensure that all requested action have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue on appeal should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and her representative with a Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran need take no further action until otherwise notified, but she 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. 2009). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs