Citation Nr: 1120855 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-30 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty in the US Navy from November 1961 to December 1964, and from April 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 2006 of a Department of Veterans Affairs (VA) Regional Office (RO), located in New Orleans, Louisiana. 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 noted above, this appeal stems from a denial of service connection benefits. The appellant has claimed that he now suffers from posttraumatic stress disorder (PTSD), and that the condition is the result of his service in the US Navy. More specifically, the record shows that when the appellant was stationed aboard the USS Coral Sea, another seaman and a pilot were killed/injured. The RO has conceded that since the appellant was onboard ship during these incidents and because he could have been located near the place where these accidents occurred, the appellant may have actually witnessed both events. As such, the RO has conceded that the appellant was exposed to stressful events that may, or may not, have produced PTSD. Following that determination, the appellant was sent for a VA psychiatric examination, which took place on November 6, 2006. While the examiner determined the Veteran does not have PTSD, much of the remaining medical record suggests otherwise. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim). For example, on November 4, 2006, another VA psychologist diagnosed the appellant as suffering from PTSD and since that time, the appellant has undergone additional testing and treatment, and the medical records show repeated diagnoses of PTSD. However, it is also pointed out that when the VA examiner diagnosed the appellant with PTSD, he did not specify what stressor, either inservice or post-service, has caused the appellant to suffer from PTSD. In addition, the record shows that after the appellant submitted his notice of disagreement, a statement of the case was issued in June 2009. The appellant subsequently submitted a VA Form 9, Appeal to Board of Veterans' Appeals, in July 2009. Then, the appellant proffered additional medical documents concerning the treatment he has received at his local VA Medical Center (VAMC) for PTSD. The record indicates that following the submission of the medical documents, the RO did not readjudicate the claim or issue a supplemental statement of the case (SSOC). Moreover, the appellant's representative has stated that his client, the appellant, has not waived consideration of the new material by the Agency of Original Jurisdiction (AOJ), the RO. As the appellant has expressly indicated that he did not wish to waive AOJ consideration of the new evidence submitted after the issuance of the SOC, the Board cannot consider the additional evidence without first remanding the case to the RO for initial consideration. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37, 20.1304 (2010). Additionally, the record notes that the appellant has applied for Social Security Administration (SSA) benefits and that he may now be in receipt of such benefits. It is unclear whether any of the medical records used to make a determination as to whether the appellant might receive SSA benefits correspond to the current claim. As such, these records may have an effect on the appellant's claim now before the Board. The duty to assist particularly applies to relevant evidence known to be in the possession of the Federal Government, such Social Security records. See 38 C.F.R. § 3.159(c) (2) (2009); see also Dixon v. Gober, 14 Vet. App. 168, 171 (2000). Therefore, the Board will return the claim to the AMC/RO so that it may obtain all available records relating to the appellant's claim for Social Security benefits. Hence, the claim will be remanded so that the AOJ can consider the new evidence and so that additional clarifying medical information may be obtained. Hence, to ensure that the VA has met its duty to assist the appellant in developing the facts pertinent to his claim, in accordance with the VCAA, and to ensure full compliance with due process requirements, this case must be REMANDED to the RO/AMC for the further development of evidence. 1. The RO/AMC should send the appellant corrective VCAA notice under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159 (2010) for the issues now on appeal including an explanation as to the language of the new regulation concerning PTSD found at 75 Fed. Reg. 39,843- 39,852. The appellant should also be invited to submit any pertinent evidence in his possession. The RO/AMC must explain the type of evidence that is the appellant's ultimate responsibility to submit. A copy of all correspondence to the appellant should be included in the claims file for review. 2. The RO/AMC should contact the appellant and ask that he identify all sources of medical treatment received since January 2009 for any psychiatric disorder, to include PTSD, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified (if any). Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the RO/AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2010). 3. The AMC/RO should also request all documents pertaining to any award of benefits from the Social Security Administration (SSA), and specifically request a copy of the decision awarding any benefits and copies of the medical records, upon which the SSA based its decision. All correspondence received from SSA should be included in the claims folder for future review, including any negative responses received from SSA. 4. Only after items 1 through 3 have been accomplished and all records have been included in the claims folder, then the RO/AMC should schedule the appellant for a VA psychiatric examination. It is noted that the Board has determined that the appellant has experienced stressors as a result of his service aboard the USS Coral Sea. The examination should be accomplished by an individual who has not previously treated the appellant nor should the examiner who provided the examination report of November 6, 2006, be used as the examiner of the appellant. The examiner must be instructed that only those events that the appellant experienced as being aboard the USS Coral Sea may be considered for the purpose of determining whether the appellant was exposed to a stressor or stressors in service. If a diagnosis of PTSD is appropriate, the examiner should opine as whether it is at least as likely as not (a probability of 50 percent or greater) that PTSD was caused by the in-service stressors found to be established for the record by the RO. If the examiner determines that the appellant has a psychiatric disorder other than PTSD or that co-exists with PTSD, the examiner should opine as to whether it is at least as likely as not that the psychiatric disorder or disorders other than PTSD are at least as likely as not related to military service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favour of that conclusion as it is to find against it. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, which would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service stressor could have possibly caused the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the examiner's conclusions. The examiner should also reconcile the conflicting and contrary medical opinions of record that suggest that the appellant may or may not now be suffering from PTSD. The report of the examination should include a complete rationale for all opinions expressed. The diagnosis should be in accordance with DSM IV. The entire claims folder and a copy of this Remand must be made available to and reviewed by the examiner prior to the examination. The examiner should state in the examination report that the claims folder was reviewed. 4. The RO/AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the RO/AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the appellant and the appellant's representative should be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2010) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2010). _________________________________________________ J. SMITH 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) (2010).