Citation Nr: 1122903 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 07-39 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama 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 The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran provided testimony at a February 2011 hearing before the undersigned. A transcript of the proceeding is associated with the claims folder. Given the nature of the evidence, the Board has characterized the issue as noted on the title page. 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 The Board has preliminarily reviewed the case at hand and finds that this case is affected by the Court's decision in Clemons v. Shinseki, supra. In that case, the Board denied a claim for service connection for PTSD where the Veteran specifically requested service connection for PTSD, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder. The Board narrowly construed the claim and denied upon the absence of a current diagnosis. 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. Notably, while this 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 with possible psychosis. See January 2005 VA outpatient treatment record. Further, the Veteran was noted to have a schizotypal presentation. See June 2005 VA outpatient treatment record. As indicated under Clemons, these other diagnoses are to be considered as part of the underlying claim. To date, however, the RO has not adjudicated this claim so broadly as to incorporate psychiatric diagnoses other than PTSD. 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), are different from the provisions addressing other service connection claims. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Corrective notification action, as well as further adjudication, is thus needed. 38 C.F.R. §§ 3.159(b), 19.9. Moreover, given that the cited VA treatment records contain a discussion of the Veteran's psychiatric disability picture in relation to his in-service experiences, the Board finds that a VA psychiatric examination is "necessary" under 38 C.F.R. § 3.159(c)(4) to ascertain whether any current diagnoses, other than PTSD, are etiologically related to service. Accordingly, the case is REMANDED for the following actions: 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 service connection for an acquired psychiatric disorder, to include PTSD. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim, in terms of 38 C.F.R. §§ 3.303, 3.307, and 3.309, 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. The recent revisions to 38 C.F.R. § 3.304(f)(3) should also be addressed. 2. Thereafter, the Veteran should then be afforded a VA psychiatric examination to address the nature and etiology of any psychiatric disorder that he may have other than PTSD. The examiner should review the entire claims file in conjunction with the examination. Based on the claims file review, the Veteran's lay contentions, and the results of the examination, the examiner should render a multi-axial diagnosis. For each Axis I diagnosis other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosis is etiologically related to service. All opinions and conclusions rendered by the examiner must be supported by a complete rationale, with consideration of the evidence of record and the Veteran's own lay contentions. 3. Then, the recharacterized claim for service connection for an acquired psychiatric disorder, to include PTSD, should be readjudicated. If the determination of this claim remains unfavorable, a Supplemental Statement of the Case should be furnished to the Veteran and his representative. This Supplemental Statement of the Case must include the provisions of 38 C.F.R. §§ 3.303, 3.307, and 3.309. The Veteran 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. 2010). _________________________________________________ A. C. MACKENZIE 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).