Citation Nr: 1125879 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 08-03 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1986. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. At that time, the RO denied entitlement to service connection for post traumatic stress disorder (PTSD). The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Thus, the issue on appeal has been recharacterized as shown on the front page on this decision. The Board notes that effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal. See 75 Fed. Reg. 39843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). 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 Veteran claims that service connection should be granted for PTSD. See VA Form 21-4138, received in April 2006. As the record shows the Veteran to be in receipt of the Combat Infantryman Badge, the occurrence of an in-service stressful event has been conceded. The Veteran was afforded a VA PTSD examination in November 2006. The examiner reviewed the Veteran's claims folder in conjunction with the examination, and later examined the Veteran. Following the examination, the examiner commented that the Veteran did not meet the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)) criteria for a psychiatric diagnosis. In other words, neither PTSD, nor any other psychiatric disorder, was diagnosed. As discussed below, however, a remand is necessary to obtain additional VA and private medical records, as well as to potentially secure an additional medical examination/opinion. In his substantive appeal (see VA Form 9, dated in February 2008), the Veteran asserted that he was currently being seen by a doctor at a VA outpatient clinic for PTSD. VA outpatient treatment records are on file, most recently dated in October 2002. None of the VA outpatient records on file show that the Veteran was treated for any psychiatric-related problems. 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 that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, complete VA outpatient medical records dated from October 2002 indicative of psychiatric-based treatment afforded the Veteran need be associated with the record. 38 C.F.R. § 3.159(c)(2) (2010). The Veteran, also as part of his February 2008 substantive appeal, claimed to be getting treatment for PTSD from a private physician. He did not provide the name of the physician. These private medical records may contain information critical to the matter at hand, and VA regulations require VA to assist in obtaining such records. 38 C.F.R. § 3.159(c)(1) (2010). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all records associated with VA outpatient treatment provided the Veteran for psychiatric-related problems from October 2002 to the present. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 2. The RO/AMC should also obtain all private medical records associated with treatment provided the Veteran for psychiatric-based problems. To assist in acquiring these private medical records, the RO/AMC should provide the Veteran a copy of VA Form 21-4142 (Authorization and Consent to Release Information). Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(1). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 3. Thereafter, and in the event that review of the above-sought VA and/or private medical records include a diagnosis of a psychiatric disorder, to include PTSD, the RO/AMC should arrange for the Veteran to be scheduled for a VA examination in connection with his psychiatric disorder claim. If a psychiatrist is not available to conduct the examination, an examination by a mental health professional qualified to conduct such an examination should be arranged. The claims folder and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: a. Based on a review of the claims folder and the examination findings, provide a diagnosis of any psychiatric disorders that are present, including PTSD. If it is not possible to provide a specific diagnosis, so state. b. If a psychiatric disorder is found, state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that it is etiologically related to or began during the Veteran's active military service, as opposed to its being due to some other factor or factors. c. If PTSD is found, state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's PTSD is the result of a conceded in-service stressor. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO/AMC must notify the Veteran that it is his responsibility to report for a scheduled VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.655 (2010). In the event that the Veteran does not report for the examinations, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any of the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, the RO should take appropriate corrective action. 6. Thereafter, the RO/AMC, following its conducting any additional development of the evidence seen as appropriate, should readjudicate this issue in light of all the evidence on file, to include the Court's holding in Clemons. If the benefit sought on appeal remains adverse to the Veteran, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. The appellant 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 or by the Court 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). _________________________________________________ KATHLEEN K. 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) (2010).