Citation Nr: 1206331 Decision Date: 02/21/12 Archive Date: 03/01/12 DOCKET NO. 10-05 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a 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 C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from September 1999 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Newark, New Jersey. The RO issued a second rating decision in August 2008 addressing whether the Veteran had submitted new and material evidence to reopen a previously denied claim. However, the Veteran had timely filed a notice of disagreement (NOD) with respect to the November 2007 rating decision, placing it in appellate status. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.300, 20.302. Therefore, the instant appeal involves an original claim of service connection. The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in September 2011. A transcript of the hearing has been associated with the claims file. Following the Board hearing, the Veteran submitted additional evidence in support of her appeal. Because she waived initial RO jurisdiction of this evidence, the Board has accepted it for inclusion into the record on appeal. See 38 C.F.R. §§ 20.800; 20.1304. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required. REMAND As an initial matter in this appeal, the Board finds that the scope of the instant appeal reasonably encompasses a claim of service connection for any psychiatric disorder, including, but not limited to, PTSD and bipolar disorder. In making this determination, the Board acknowledges a May 2009 Report of Contact from the RO indicating that the Veteran was seeking service connection for PTSD alone. Nonetheless, the Veteran's September 2011 Board hearing testimony, when considered in relation to the medical evidence of record and the RO's development and adjudication of the claim, demonstrates that the scope of the claim more reasonably encompasses a claim of service connection for any psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-88 (2009). After a careful review of the record, the Board finds that further development is necessary in this matter, as follows. First, remand is necessary to attempt to obtain outstanding evidence. To begin with, further efforts should be undertaken to attempt to obtain the Veteran's missing service treatment records (STRs), particularly her mental health records. The RO previously undertook extensive efforts to attempt to obtain them, but the most recent inquiry to the National Personnel Records Center (NPRC) resulted in a December 2009 response indicating that the clinical records from 1999 through 2001 had not been retired to NPRC as of that time. However, because considerable time has since passed since the RO's efforts, an additional attempt should be made for the outstanding STRs, including further inquiry to NPRC. Additionally, the Veteran's entire personnel file should be obtained. In addition to the service records, an August 2006 VA treatment record reveals that the Veteran applied to Social Security Administration (SSA) for disability benefits. A later VA treatment record from October 2008 indicates that her SSA claim had been denied. Nonetheless, the records from SSA are potentially pertinent and must be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim). Additionally, the Veteran testified at her September 2011 Board hearing that she first had treatment after service at a private (non-VA) facility. Although the claims file currently contains some post-service treatment records, they appear incomplete, as they do not reflect mental health complaints. Upon remand, the RO must make as many attempts as necessary to obtain the missing records. All outstanding VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Second, a VA examination is necessary to decide the case. Accordingly, after all outstanding evidence has been obtained, a VA examination should be arranged. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board recognizes in this regard that the Veteran's VA treatment records reflect a diagnosis of PTSD related to a miscarriage during service. Although this evidence is favorable to her claim, the Board finds that a VA examination is nonetheless necessary, because the VA treatment records also reveal some inconsistent and contradictory information. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009) (citing Austin v. Brown, 6 Vet. App. 547, 553 (1994)). Finally, the Veteran's STRs include an untranslated document written in Korean. She has also indicated that she received private treatment in a civilian hospital while stationed in Korea. It is necessary that all foreign language documents be translated prior to arranging for the VA examination and any subsequent readjudication of the issue. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran a letter requesting that she provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers who may have additional records pertinent to the remanded claim. She should be asked to particularly identify all providers who treated her for mental health complaints prior to her initial treatment at VA in April 2006. To the extent necessary, she should be asked to complete an Authorization and Consent to Release Information (Release) specifically authorizing the release of mental health treatment records. 2. The RO should make as many attempts as necessary to obtain all pertinent private records identified by the Veteran, if not already associated with the claims file. The RO should also obtain all of the Veteran's VA treatment records since March 2011. Additionally, the RO should take appropriate steps to contact the SSA and attempt to obtain any records pertinent to the Veteran's award or denial of Social Security disability benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering the decision. All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in order to allow him the opportunity to obtain and submit those records for VA review. 3. The RO should contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, with a follow-up request for copies of all outstanding service treatment records, particularly mental health treatment records, in addition to the Veteran's complete personnel record. To the extent any inquiry indicates that further development is necessary, the RO should make as many follow-up attempts and/or further inquiries as necessary to obtain the missing records. If it is discovered that any records, such as mental health records, were destroyed, it is imperative that the RO obtain an affirmative response from the medical facility so stating. Accordingly, if, after making as many requests as are necessary to obtain the outstanding service records it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the AMC/RO should issue a Formal Finding on the Unavailability of Records Memorandum consistent with 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. The Veteran should be sent notice of this finding. 4. After completing the above requested development, the RO should undertake any further development warranted by the record, to include translating all foreign language documents. Then, the RO should arrange for the Veteran to undergo an appropriate VA examination(s) to determine the nature and likely etiology of the claimed psychiatric disorder. The entire claims file, including a copy of this remand, must be made available to the examiner(s) for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Then, based on the record review and examination results, the examiner is requested to address the following: (a) Does the Veteran have a current diagnosis of PTSD that is at least as likely as not (i.e., there is a 50 percent probability or greater) due to an in-service stressor. If the examiner diagnoses PTSD due to an in-service stressor, the examiner should explain the basis for the diagnosis, including identification of the specific in-service stressor(s) supporting the diagnosis. If the examiner does not diagnose PTSD, the examiner should explain why the Veteran does not meet the criteria for a diagnosis of PTSD. (b) Does the Veteran have a current diagnosis of a psychiatric disorder other than PTSD, such as bipolar disorder, that at least as likely as not (i.e., there is at least a 50 percent probability) had its onset during service, became manifest within a one-year period following her discharge from service, or is otherwise causally related to any event or circumstance of her active service? In making these determinations, the examiner is asked to address the relevant post-service treatment records from VA reflecting various psychiatric diagnoses, including bipolar disorder, and PTSD related to a miscarriage during service. The examiner is also requested to discuss the Veteran's own statements regarding the onset and continuity of her symptomatology. The examiner(s) is requested to prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. It is essential that the examiner(s) offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. 5. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded claim in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2011). _________________________________________________ ERIC S. LEBOFF 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) (2011).