Citation Nr: 1113108 Decision Date: 04/04/11 Archive Date: 04/13/11 DOCKET NO. 07-27 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include schizophrenia, paranoid type, bipolar disorder, psychotic disorder, depression, anxiety, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1990 to October 1991. These matters come before the Board of Veterans' Appeals (BVA or Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Historically, the Veteran initially filed a claim for entitlement to service connection for schizophrenia, paranoid type, claimed as a nervous condition, in June 1998. The RO, in January 2000 denied the Veteran's claim on the basis that it was not well-grounded. The Veteran did not appeal that decision within a year, and it became final. The Veteran subsequently filed March 2001 claims for schizophrenia, paranoid type, and for a right ankle condition. The RO issued a merits based decision in July 2001 that denied service connection for schizophrenia and a right ankle disorder. The Veteran did not appeal that decision within a year, and it became final. See 38 C.F.R. § 20.1103 (2010). In February 2002, the Veteran filed a claim to reopen her right ankle disorder in February 2002. She additionally filed a claim for a mental disorder in May 2002. The RO issued a decision in May 2003 that denied both claims on the merits. She did not timely appeal that decision and it became final. As such, the Veteran would typically be required to submit new and material evidence to reopen her claims for service connection for schizophrenia and a right ankle disorder. See 38 C.F.R. § 3.156(a) (2010). However, as part of her current, the Veteran submitted a copy of a service treatment record that had not been previously of record. Those record included findings that were relevant to her assertion that she first experienced problems with depression in service, and that she suffered an in-service fracture of the right ankle. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c). The Board will therefore proceed with the instant claims on a merits consideration, as opposed to petitions to reopen the claims based on new and material evidence. With respect to the Veteran's claim for schizophrenia and a bipolar disorder, the Board notes that recent case law emphasizes that a claim for a mental health disability 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board has recharacterized the issue to the broader issue of entitlement of service connection for an acquired psychiatric disability, as is reflected on the cover page. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Acquired Psychiatric Disorder- A chapter physical completed in September 1991, just prior to the Veteran's separation from service, reflected no clinical psychiatric evaluation. However, the Veteran complained of depression or excessive worry in a report of medical history completed at that time. The examining physician noted at the end of the medical history form "depression-started over here-lots of problems here-resulted in Chapter." In an undated medical record, submitted in March 2006, which appears to be related to her chapter physical, the Veteran reported that she had gone to the Khobar Mental Clinic for depression and excessive worry. She contends that she has suffered from a psychiatric disorder since service. Following service, a September 1995 private treatment record, reflected that the Veteran was hospitalized for psychiatric related issues. There are no available treatment records reflecting treatment during the pendency of this appeal. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on documentation of complaints of psychiatric-related problems in service and post-service treatment for psychiatric problems, the Board finds that a remand of the claim of service connection for an acquired psychiatric disorder is necessary. 38 U.S.C.A. § 5103A(d)(2); McLendon, 20 Vet. App. 79 (2006). The Board additionally notes that the Veteran has most recently asserted that she has PTSD. See April 2010 statement. Although medical records in the file do not confirm a diagnosis. She appears to attribute this to almost being killed in the Khobar Tower barracks at base Bravo near the King Khalid Military City which came under attack by enemy terrorists. She additionally reported that as part of her MOS (motor transport), she went on missions to the front lines to pick up cavalry and artillery Bradley tanks and bring them back. See Id. A recent regulatory change has eliminated the requirement for corroboration of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. It is necessary that 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. See 75 Fed. Reg. 39,843-39852 (July 13, 2010). This regulatory change is applicable to her alleged stressors, because these incidents relate to "fear of hostile military or terrorist activity." As such, the VA examiner is additionally asked to address whether the Veteran has a diagnosis of PTSD and whether it is related to her claimed stressors. Right Ankle Disorder- A chapter physical completed in September 1991, just prior to the Veteran's separation from service, reflected a normal clinical of her lower extremities. However, the Veteran complained of broken bones in a report of medical history completed at that time. The examining physician noted at the end of the medical history form "broken bones-possible [fracture] [right] ankle- Mar[ch] 91 (Basketball injury)." In an undated medical record, submitted in March 2006, which appears to be related to her chapter physical, the Veteran reported that during the war her ankles were hurt badly. She essentially contends that she has suffered from a right ankle disorder since service. Following service, a letter received in February 2002 from the Veteran's private treating physician indicated that the Veteran had been recently examined and there was evidence of continued disability for a post-fracture deformity which has resulted in possible arthritic changes. He indicated that after reviewing her medical records and examination, there is likelihood that this was a result of service related accident which she had in 1991. He stated that after reviewing the X-rays, there is narrowing of the joint space and some degeneration seen. He opined that this could be service related accident from a basketball injury. Unfortunately, the law provides that service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Further, it is unclear which body part the physician was referring to, as the "right ankle" was never specifically mentioned. At an April 2002 VA treatment visit, the Veteran reported fracturing her right ankle during a basketball injury in March 1991. She was diagnosed with a history of fractured ankle. The Veteran was issued an ankle brace in November 2002. There are no available treatment records reflecting treatment during the pendency of this appeal. Based on documentation of complaints of right ankle-related problems in service and post-service treatment for the right ankle, the Board finds that a remand of the claim of service connection for a right ankle disorder is necessary. 38 U.S.C.A. § 5103A(d)(2); McLendon, 20 Vet. App. 79 (2006). VA Treatment Records- The claims file reflects that the Veteran has received medical treatment from the VA Medical Center (VAMC) in Orlando, Florida; however, as the claims file only includes treatment records from that facility dated up to February 2003, any additional records should be obtained. 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. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC/RO should obtain and associate with the claims file all outstanding VA records. Social Security Administration (SSA) Records- The Board notes that various private treatment records make reference to the Veteran's receipt of SSA disability income and SSA disability. A copy of the SSA decision awarding benefits and records underlying that decision has not been obtained. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Although it is unclear for what disorder the Veteran is receiving disability benefits for, it appears that it may be related to her psychiatric disorder. See April 2002 VA treatment record. As such, these records must be obtained. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for her acquired psychiatric disorder and right ankle disorder. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. Regardless of whether or not the Veteran responds the AMC/RO must obtain the Veteran's treatment records from the Orlando VAMC since February 2003. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain SSA records, including the medical evidence used to determine disability eligibility. Any negative search result should be noted in the record. 3. Following the development set forth in paragraphs 1 and 2 of this Remand, schedule the Veteran for a VA psychiatric examination, to be conducted by a VA staff or contracted psychiatrist, or a VA staff or contracted psychologist. The VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder either began during or was otherwise caused by the Veteran's military service. In doing so the examiner should discuss the September 1991 in-service examination and the Veteran's assertions of psychiatric difficulties since service. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record, to include consideration of symptomatology exhibited during service. The claims file must be reviewed in conjunction with the examination. 4. The Veteran should be afforded an examination to ascertain the nature and etiology of any right ankle disorder that may be present. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly service treatment records, and offer comments and an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current right ankle disorder had its onset during the Veteran's active service or is otherwise causally related to his service. In doing so the examiner should discuss the September 1991in-service examination, the Veteran's assertions of right ankle difficulties since service, and the private practitioner's statement received in February 2002. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record, to include consideration of symptomatology exhibited during service. The claims file must be reviewed in conjunction with the examination. 5. After the above actions have been completed, readjudicate the Veteran's claims. If any claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 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). These claims 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). _________________________________________________ MICHAEL A. HERMAN 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).