Citation Nr: 1041069 Decision Date: 11/02/10 Archive Date: 11/12/10 DOCKET NO. 07-01 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depression and substance abuse. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to January 1987. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the two separate issues of entitlement to service connection for PTSD and entitlement to service connection for major depression as one issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depression and substance abuse. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 As an initial matter, the Board notes that the Veteran has been receiving regular VA treatment for his psychiatric disability at the Syracuse VAMC, but the most recent VA treatment record is dated October 2006. Because records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, VA must obtain these records. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c) (2009). As such, the Board has no discretion and must remand this case. The Board also notes that one of the Veteran's reported stressors is the report of an in-service personal assault by his drill sergeant. In cases of personal assault, it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See Patton v. West, 12 Vet. App. 272, 281 (1999). 38 C.F.R. § 3.304(f) reflects a recognition that service records may not contain evidence of personal assault, and that alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). Evidence of behavior changes, such as deterioration in work performance or substance abuse, following the claimed assault is one type of relevant evidence that may be found in these sources. 38 C.F.R. § 3.304(f)(3). VA must advise the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Thus, this claim should be developed in accordance with the applicable provisions of 38 C.F.R. § 3.304(f)(4). See Gallegos v. Peake, 22 Vet. App. 329 (2008). Finally, in light of the Veteran's contentions and the state of the record, the Board finds that after all pertinent outstanding records have been associated with the claims folder that the Veteran must be afforded a VA psychiatric examination to assess the etiology and/or onset of any psychiatric disability found to be present. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO must request all pertinent, outstanding VA treatment records relating to his treatment for psychiatric disability at the Syracuse VAMC, specifically those dated since October 2006. All records obtained pursuant to this request must be included in the claims file. If the search for the records is negative, documentation to that effect should be included in the claims file. 2. Attempt to further develop the Veteran's claim of service connection for PTSD in accordance with those special alternative evidentiary development procedures associated with personal assault claims as noted in 38 C.F.R. § 3.304(f)(4). 3. Then schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any psychiatric found to be present and to determine whether the Veteran has PTSD and, if so, whether such is linked to his military service. His claims folder should be available to the examiner and reviewed in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the records contained in the claims folder and the results of the examination, the examiner is asked to provide an opinion addressing the following questions: a. Identify all psychiatric disability found to be present. b. If the examiner diagnoses the Veteran as having PTSD, the examiner must opine as to whether it is at least as likely as not related to or had its onset in service. c. Regardless of whether the Veteran is diagnosed as having PTSD, the examiner must opine as to whether it at least as likely as not that any other psychiatric disability found to be present is related to or had its onset in service. d. If the examiner diagnoses the Veteran as having substance abuse, the examiner must opine as to whether it is at least as likely as not that the substance abuse, however diagnosed, is related to a psychiatric disability of service origin. In offering these impressions, the examiner must discuss the Veteran's lay report regarding the onset of his psychiatric symptoms. A complete rationale should be given for all opinions and conclusions, which should be set forth in a legible report. 4. Then readjudicate the appeal. If the benefits sought are denied, provided the Veteran and his representative a supplemental statement of the case, with an appropriate period for response, before the case is returned to the Board. 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). _________________________________________________ STEVEN D. REISS Acting 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).