Citation Nr: 1136767 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-23 828 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972. This appeal to the Board of Veterans' Appeals (Board) arises from a December 2007 rating decision in which the RO, inter alia, denied service connection for PTSD. In February 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2008. In a June 2010 decision, the Board denied service connection for an acquired psychiatric disorder, to include PTSD. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 Order, the Court granted a Joint Motion (filed by representatives of both parties) to vacate and remand the June 2010 Board decision, and returned this matter to the Board for further proceedings consistent with the Joint Motion. As discussed in the June 2010 decision, in light of the Court's decision in Clemons v. Shinseki, and the evidence of record (including a diagnosis of generalized anxiety disorder), the issue on appeal was expanded, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In January 2010, the Veteran filed a claim for service connection for generalized anxiety disorder and depression, asserting that he wanted these issues considered along with his claim for PTSD. The Veteran's January 2010 claim appears to have been placed in a "temp file" at the RO and, therefore, was not of record at the time of the June 2010 Board decision. In a February 2011 rating decision, the RO denied service connection for an acquired psychiatric disorder, claimed as generalized anxiety disorder and depression. While the Veteran has not filed a NOD with the February 2011 rating decision, the Board notes that, in light of the Court's February 2011 Order granting the Joint Motion, the Veteran's February 2007 claim for PTSD, which includes a claim for a psychiatric disorder other than PTSD, remains pending. The Board also notes that the claims file reflects that the Veteran was previously represented by Veterans of Foreign Wars of the United States (as reflected in a February 2007 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In February 2011, the Veteran filed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, appointing private attorney James G. Fausone as his representative. The Board has recognized the change in representation. For the reasons expressed below, the matter on appeal is being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND In light of points raised in the Joint Motion, and review of the claims file, the Board finds that further RO action in this appeal is warranted. In July 2011, after issuance of the Court's Order, the Board wrote to the Veteran's attorney and offered him the opportunity to submit additional argument and evidence within 90 days. In August 2011, the Veteran's attorney submitted medical evidence in support of the claim for service connection for an acquired psychiatric disorder, to include PTSD. He included the "90-Day Letter Response Form" and checked the box indicating that he was submitting the enclosed argument and/or evidence, and that he wanted the case remanded to the agency of original jurisdiction (AOJ) for review of this newly submitted evidence. Under these circumstances, the Board has no alternative but to remand the claim on appeal for the RO to consider the claim in light of such evidence, in the first instance, and to issue a supplemental SOC (SSOC) reflecting such consideration. See 38 C.F.R. §§ 19.37, 20.800, 20.1304(c) (2011). The Board also finds that additional development, prior to reconsideration of the claim, and issuance of the above-referenced SSOC, is warranted. Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder; a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s); and credible supporting evidence that the claimed in-service stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The Board notes, however, that, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims such as the Veteran's, which is pending before VA on or after July 12, 2010 because the Court vacated a Board decision on the application and remanded it for readjudication. Pursuant to 38 C.F.R. § 3.304(f), as revised, if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). The Veteran has asserted that he has PTSD related to in-service stressors, including coming under enemy fire in Vietnam, loading dead bodies into trucks, and a fellow servicemember being killed by friendly fire. The Veteran has indicated that every day in Vietnam was stressful, and he could hardly sleep because of his fear of getting killed. His service personnel records confirm that he served in Vietnam from November 1970 to November 1971. In an August 2008 letter, the Veteran's friend, who allegedly served with him in Vietnam, reported that their base was mortared; they had to load bodies into trucks and bury them; and a well-liked and well-known Lieutenant was killed soon before his tour was to end. The Veteran was afforded a VA examination in connection with his claimed PTSD in November 2007. The Axis I diagnosis following examination was generalized anxiety disorder. The examiner commented that the Veteran reported multiple unverified incidents of sufficient threat and horror to meet criterion A for a diagnosis of PTSD; however, his present symptom complaints failed to include a pervasive pattern of avoidance or numbing of emotional responsiveness (criterion C) necessary for such a diagnosis. The examiner added that the Veteran's presentation, history, and complaints pointed compellingly to the diagnosis of generalized anxiety disorder and opined that the Veteran's generalized anxiety disorder was less likely than not a result of his military service. In the February 2011 Joint Motion, the parties indicated that VA had failed to satisfy the duty to assist by ensuring that the Veteran received an adequate VA examination. See Joint Motion, at p. 1. The parties noted that the November 2007 VA examiner provided no basis or supporting rationale for his conclusion that the Veteran's generalized anxiety disorder was less likely than not a result of his military service and, therefore, the examination report was inadequate for rating purposes. See Joint Motion, at p. 3; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). The parties found that remand was required so that a more comprehensive medical opinion could be obtained. Hence, the RO should arrange for the Veteran to undergo VA examination, by a psychologist or psychiatrist, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. In rendering the requested opinion, the psychologist or psychiatrist should consider and address the pertinent evidence of record. In this regard, the Board highlights that post-service records of VA treatment include conflicting findings regarding the Veteran's current psychiatric diagnosis. Specifically, a March 2008 VA treatment record indicates that the Veteran's depression was related to several factors, including dreams about Vietnam and his loss of a friend there. The nurse further noted that the Veteran met the criteria for PTSD. During VA treatment in September 2008, a VA psychologist indicated that the Veteran did not report specific events that met criterion A for a diagnosis of PTSD which continued to trouble him. The Axis I diagnoses on that date were generalized anxiety disorder and dysthymia. However, a VA psychiatric treatment note from one week later includes an assessment of PTSD. A January 2010 VA treatment record indicates that the Veteran did not meet the criteria for PTSD. The Axis I diagnoses at that time were, again, generalized anxiety disorder and dysthymia. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the VA examiner is complete, the RO should also obtain and associate with the claims file all outstanding pertinent medical records. In this regard, a December 2010 VA treatment record reflects that the Veteran's SSI/SSD claim was pending; however, no Social Security Administration (SSA) records have been associated with the claims file. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should obtain and associate with the claims file a copy of any SSA decision regarding a claim for disability benefits pertinent to the claim on appeal, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. In the Joint Motion, the parties found that remand was warranted to attempt to obtain or otherwise account for outstanding pertinent private treatment records. See Joint Motion, at p. 2. In this regard, during the November 2007 VA examination, the Veteran reported that, after receiving VA primary care treatment on several occasions beginning in 2004, he elected to return to his community primary care provider, Dr. S.R. He reported that this physician had prescribed him an anxiolytic and a sleep aid in the remote past; although he did not remember the names of the medications or the timeframes in which they were prescribed. In his February 2008 NOD, the Veteran reported that he was currently taking Xanax for anxiety and restless sleeping, which had been prescribed by his family doctor. As required under 38 C.F.R. § 3.159(c)(3), VA must attempt to procure treatment records identified by the Veteran. On remand, the RO should obtain and associate with the claims file any records of treatment pertinent to the claim on appeal from Dr. S.R. If current authorization to obtain these records is required, the RO should request that the Veteran sign and furnish such appropriate authorization for the release to VA of all such private medical records, and any such authorization should be associated with the claims file. Additionally, in the Joint Motion, the parties indicated that, on remand, the Board should ensure that the Veteran's VA treatment records had been obtained and considered, or otherwise accounted for. See Joint Motion, at p. 2. Following issuance of the Court's February 2011 Order, the Veteran's attorney submitted additional records of VA treatment. The claims file currently includes VA treatment records from the Detroit VA Medical Center (VAMC) dated from June 2004 to December 2010. Thus, there exists the possibility that more recent records from this facility may exist. The Board emphasizes that 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, 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). Hence, the RO must obtain from the Detroit VAMC all outstanding pertinent VA records of evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request any current authorization needed to obtain the identified private records noted above. Thereafter, 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. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's readjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim-to include that submitted directly to the Board (discussed above). The RO's readjudication of the claim should also include consideration of 38 C.F.R. § 3.304(f), as revised. Accordingly, this matter is hereby REMANDED to the RO for the following action: 1. The RO should obtain from the Detroit VAMC any records of mental health evaluation and/or treatment of the Veteran, dated since December 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should obtain from the SSA a copy of any decision(s) regarding the Veteran's claim for disability benefits pertinent the claim on appeal, as well as copies of all medical records underlying those determinations. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. The RO should send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. If current authorization is required to obtain outstanding treatment records from Dr. S.R. (identified above), the RO should specifically request that the Veteran provide current signed authorization to enable it to obtain all outstanding records from this physician, and a copy of such authorization should be associated with the claims file. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified-to specifically include the treatment records from Dr. S.R. (as noted above)-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. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo a VA examination, by a psychologist or psychiatrist, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include psychological testing, if deemed warranted) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current psychiatric disability(ies), to include PTSD, generalized anxiety disorder, and/or dysthymia. Then, with respect to each such diagnosed disability, the psychologist or psychiatrist should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is due to injury or disease incurred or aggravated during active service. In rendering the requested opinion, the examiner should consider and discuss all relevant medical evidence contained in the claims file, and should specifically consider and discuss the March 2008 VA treatment record (indicating that the Veteran's depression was related to several factors, including dreams about Vietnam and his loss of a friend there, and further noting that the Veteran met the criteria for PTSD) as well as the September 2008 VA treatment record (including an assessment of PTSD). If a diagnosis of PTSD is deemed appropriate, the examiner should clearly explain how the diagnostic criteria are met-to include discussion of whether any stressor(s) related to the Veteran's fear of hostile military or terrorist is/are deemed sufficient to have resulted PTSD, as well as comment upon the link between any such stressor(s) and the Veteran's symptoms. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed report. 6. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, the RO must ensure that all requested actions 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. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence (to particularly include all evidence added to the record since the RO's last adjudication of the claim, to include that submitted directly to the Board) and legal authority (to include 38 C.F.R. § 3.304(f), as revised). 9. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his attorney an appropriate supplemental SOC (SSOC) that includes citation to and discussion of additional legal authority considered-to include 38 C.F.R. § 3.304(f), as revised-along with clear reasons and bases foe all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2011). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2011).