Citation Nr: 1302767 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-11 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a psychiatric disorder other than a mood disorder, to include a posttraumatic stress disorder (PTSD) and an anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from March 1983 to August 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). A June 2009 rating decision granted service connection for a mood disorder, not otherwise specified, previously called a bipolar disorder, and assigned a 50 percent rating effective November 27, 2006. Although the Veteran requested a Board hearing in his April 2009 substantive appeal, and a travel board hearing was scheduled for June 2010, he indicated in correspondence received by VA in May 2010 that he wished to withdraw his request for a Board hearing. 38 C.F.R. § 20.702(e) (2012). The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence reveals that the Veteran was diagnosed in July 2007 as having an anxiety disorder with strong PTSD features. The Board also notes that service connection is in effect for a mood disorder, evaluated as 50 percent disabling effective November 27, 2006. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 claims file includes information dated in January 2010 indicating that the Veteran filed a claim for Social Security Administration (SSA) disability benefits, which was denied. However, the claims file does not include a copy of the SSA decision or the medical evidence upon which the decision was based. Under 38 U.S.C.A § 5103A(c)(3) (2012), 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. Although not dispositive as to an issue that must be resolved by VA, any relevant findings made by the SSA are evidence which must be considered. Murinscak v. Derwinski, 2 Vet. App. 363 (1992). In light of Clemons, the Board finds that it has jurisdiction over the claim of service connection for a psychiatric disability other than a mood disorder, to include an anxiety disorder. The Board also notes that, because VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary, and because the Veteran has not been provided with a VA examination which addresses a possible causal relationship between the Veteran's anxiety disorder and his active service, he should be scheduled for an appropriate examination. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the case is REMANDED to the AMC/RO for the following actions: 1. The AMC/RO will take appropriate action to contact the Veteran and ask him to provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who have treated him for a psychiatric disorder since the VA evaluation in April 2009, which is the most recent medical evidence on file. After obtaining any necessary authorization from the Veteran for the release of his private medical records, the AMC/RO will obtain and associate with the file all records that are not currently on file. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. The AMC/RO will obtain from the SSA a copy of its decision regarding the Veteran's denial of SSA disability benefits, as well as the medical records relied upon in that decision. Those records will be associated with the claims folder. 3. The AMC/RO will schedule the Veteran for a psychiatric examination by an appropriate health care provider to determine if the Veteran currently has an anxiety disorder or other psychiatric disorder other than a mood disorder and, if so, its nature and etiology. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. Based on a review of the Veteran's claims file and the results of his physical examination, the examiner should discuss whether the Veteran's has an anxiety disorder, or other psychiatric disorder other than a mood disorder, that is at least as likely as not (i.e., a 50 percent or more probability) causally related to active service and whether it is manifested by any unique psychiatric symptomatology that can be separated from the already service-connected mood disorder (if possible). A complete rationale must be provided for any opinion expressed. 4. The AMC/RO must notify the Veteran that it is his responsibility to report for any examination scheduled 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. §§ 3.158, 3.655 (2012). 5. Following completion of all indicated development, the AMC/RO will readjudicate the service connection issues on appeal, considering any and all evidence that has been added to the record since its last adjudicative action. If any of the benefits sought on appeal remains denied, the Veteran and his representative will be provided a Supplemental Statement of the Case, which should include all pertinent law and regulations. The Veteran and his representative will then be given an appropriate opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran may present additional evidence or argument while the case is in remand status at the AMC/RO. 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).