Citation Nr: 1237179 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-17 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran; the Veteran's spouse ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1978, November 1983 to October 1984, and from September 1985 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge, seated at the RO (Travel Board hearing). A transcript of the hearing has been procured and is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board finds that additional development is required regarding the issue of service connection for PTSD prior to Board adjudication. 38 C.F.R. § 19.9 (2011). The Veteran essentially contends that he developed PTSD due to in-service stressor experiences. Private treatment records dated since April 2009 indicated treatment for diagnosed PTSD. In several statements throughout the record, the Veteran has indicated that his diagnosed PTSD was related to an in-service incident which occurred on October 15, 1975. The Veteran stated that he was lying on his bed in the barracks when he heard the sound of automatic gunfire nearby. The Veteran indicated that both he and his fellow service members became concerned that the base was under attack by either hostile or terrorist forces during the confusion immediately following the gunfire. The Veteran indicated that their confusion as to the cause of the gunfire was not alleviated immediately because the barracks quickly were put on lockdown. The Veteran stated that he learned the next day, after the lockdown order was rescinded, that a fellow service member had committed suicide with his rifle. The Veteran indicated that the stress and fear he felt immediately following the incident had stayed with him. In an October 2011 private treatment record, the Veteran indicated that his PTSD was related to an incident that occurred during a training exercise during which a mortar shell landed short of its target and almost killed six service members. The Veteran did not state whether he was present at the incident, but stated that it increased his fears for his own safety. In July 2009, the RO made a formal finding, indicating that the Veteran had not submitted sufficient information to allow for the verification of the Veteran's reported stressor involving the service member's suicide. Since the July 2009 formal finding, the Veteran has contended that the evidence currently included in the claims file, specifically service treatment records and service personnel records indicating in-service treatment for anger management, corroborated his account of PTSD symptomatology following the October 1975 incident. The AMC/RO should allow the Veteran an additional opportunity to provide information to allow for the corroboration of his claimed stressors. Having done so, the AMC/RO should review the evidence and take any necessary action regarding stressor verification. The evidence indicates that the Veteran has outstanding records with the U.S. Social Security Administration (SSA). The Veteran's claims file currently contains a copy of a July 2004 SSA administrative decision, granting SSA disability benefits; however, the record does not contain all the underlying medical records SSA used in making this decision, to include VA treatment records and private records indicating psychiatric treatment. It does not appear that the RO contacted SSA in order to incorporate these medical records into the claims file. VA has a duty to obtain SSA records when it has actual notice of their existence. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002); Voerth v. West, 13 Vet. App. 117, 121 (1999); Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Where there is a reasonable possibility that the outstanding SSA records would aid a veteran in substantiating a VA claim for service connection, the SSA records should be requested. See 38 U.S.C.A. § 5103A(a)(2) (West 2002 & Supp. 2011). The AMC/RO should contact SSA to request such records, and should obtain and associate with the claims file any copies of the Veteran's medical records in SSA's possession. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2) (2011). The evidence also indicates that there are outstanding VA treatment records that have not been associated with the claims file. In a September 2011 VA PTSD examination report, the Veteran indicated that he had received mental health treatment at VA facilities in Pennsylvania for approximately 10 years, to include monthly visits with a VA psychiatrist. At the June 2012 Travel Board hearing, the Veteran also stated that he had been diagnosed with PTSD by a VA nurse at the VA medical facility in Allentown, Pennsylvania one week prior to the hearing. The claims file currently does not contain any VA treatment records dated later than July 30, 2003. The AMC/RO should associate with the claims file copies of the Veteran's outstanding VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(3). The evidence also indicates that there are outstanding private treatment records that have not been associated with the claims file. At the June 2012 Travel Board hearing, the Veteran's spouse indicated that he had been treated in a psychiatric ward approximately two or three years prior to the hearing. The Veteran's spouse did not state whether such treatment occurred at a private or VA facility. In addition, the Veteran receives monthly treatment from private examiners at the Family Guidance Center of Warren County for diagnosed PTSD symptomatology. The last such private treatment record is dated July 3, 2012. The AMC/RO should associate with the claims file copies of the Veteran's outstanding private treatment records, to include any from the Family Guidance Center of Warren County created after July 3, 2012, the date of the last private treatment record included in the claims file. Id. The RO provided the Veteran with a September 2011 VA PTSD examination to determine the nature and etiology of the Veteran's claimed PTSD. Having reviewed the evidence, the VA examiner determined that the Veteran did not have PTSD. Since the September 2011 VA PTSD examination, additional evidence has been added to the claims file, to include additional private treatment records. For these reasons, the Board finds that an additional VA psychiatric examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran in writing and afford him an additional opportunity to provide any additional information regarding his claimed in-service stressors leading to the onset of his PTSD. The letter should especially seek more specific information regarding the October 1975 incident during which the Veteran heard a fellow service member commit suicide, to include the name of the service member who committed suicide if possible. The Veteran should also be asked to supply additional information regarding the stressor involving the errant mortar shell, such as the date of the incident and the location. 2. The AMC/RO should contact the Veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers who provided treatment for his claimed PTSD. The Veteran should specifically be asked to provide the information and authorizations allowing for the procurement of the treatment records from the Family Guidance Center of Warren County since July 3, 2003, and any other pertinent treatment not previously identified. The RO should attempt to obtain any properly identified records. 3. The AMC/RO should procure any VA treatment records dated after July 30, 2003, the date of the last VA treatment record included in the claims file. 4. The AMC/RO should contact SSA and obtain and associate with the claims file copies of the Veteran's SSA records, especially any underlying medical records SSA relied upon in making its July 2004 decision granting SSA disability benefits. In requesting these records, the AMC/RO should follow the current procedures of 38 C.F.R. § 3.159(c), which require efforts to obtain Federal records to continue until either the records are received or notification is provided that further efforts to obtain them would be futile. All records or responses received should be associated with the claims folder. 4. After the above has been completed and the Veteran has been provided with a reasonable amount of time to comply with the AMC/RO's requests, the AMC/RO should examine the evidence submitted by the Veteran regarding his claimed in-service stressors and, if deemed necessary, the AMC/RO should make the appropriate additional attempt (s) to corroborate the alleged stressor(s). 6. After the completion of the above, the AMC/RO should schedule the Veteran for a VA PTSD examination to ascertain the nature and etiology of the Veteran's claimed PTSD. The claims folder should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. An interview of the Veteran regarding his psychiatric history, a psychiatric examination, and all tests and studies required to respond to the following questions should be performed. The VA examiner should specifically note and discuss any of the Veteran's claimed stressors that have been corroborated. The VA examiner should list all current psychiatric diagnoses and offer the following opinion: If the VA examiner diagnoses PTSD, is it at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's PTSD is related to the in-service stressors? If PTSD is diagnosed, the VA examiner should specifically state which stressful events caused the Veteran's PTSD, including whether the underlying stressor is related to the Veteran's fear of hostile military or terrorist activity. The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as it is to find against causation. A rationale should be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons should be so stated. The VA examiner should in such case explain why it would be speculative to respond. 7. The AMC/RO should then re-adjudicate the issue of service connection for PTSD. If the benefit sought is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. 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). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2011). 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). _________________________________________________ K. J. ALIBRANDO 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).