Citation Nr: 1306740 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 05-25 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from December 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO). In February 2007, a video conference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. This matter was before the Board in July 2007 when it was remanded for additional development. In August 2011, the Board issued a decision that denied the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court vacated the August 2011 Board decision, and remanded the matter for readjudication consistent with the instructions outlined in a Joint Motion for Remand to the Board (Joint Motion) by the parties. Additionally, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the Board's August 2011 decision, it was conceded that the Veteran had a verified stressor of being exposed to mortar and rocket attacks in February 1968. Upon consideration of the record, including August 2004 and March 2010 VA examination reports, the Board concluded that the most probative evidence reflected the Veteran did not suffer from PTSD as a result of his active service and that his diagnosed major depressive disorder was secondary to his chronic pain syndrome. In the June 2012 Joint Motion, it was stated that the Board erred when it relied on the March 2010 VA examination as the examiner did not discuss the verified stressor of rocket and mortar attacks or indicate he had "confronted" the Veteran with verified stressors to render a diagnosis. Interestingly, when asked by the VA examiner to identify his stressors, the Veteran did not mention rocket and mortar attacks. The examiner naturally went on to discuss whether the events the Veteran identified as being stressors during the examination were sufficient to cause PTSD, and whether he warranted a diagnosis of such. The Joint Motion instructed that a remand was necessary for a new psychiatric VA examination wherein the Veteran is "confronted by" his verified stressor of experiencing rocket and mortar attacks during service. Apparently, the parties to the Joint Motion expect the VA examiner to advise the Veteran of the verified stressor involving rocket and mortar attacks, should the Veteran again fail to mention it voluntarily when asked to identify traumatic events occurring during service. In addition, the parties to the Joint Motion stated that although the March 2010 VA examiner diagnosed major depressive disorder, no opinion was provided as to the etiology of the diagnosed disorder. In light of the foregoing, the Board finds that the Veteran must be afforded a new VA mental disorders examination to comply with the Joint Remand. Finally, as the claims file is being returned, it should also be updated to include recent VA treatment records dating from April 2010. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the relevant VA mental health treatment records from the Providence VA Medical Center dating from April 2010. 2. After the above has been completed to the extent possible, the Veteran should be afforded a VA mental disorders examination by an appropriate VA psychologist or psychiatrist to determine the nature of any current psychiatric disorders, and to obtain a medical opinion as to whether any such disorders are possibly related to service. The claims file must be reviewed by the examiner in conjunction with the examination. a. The examiner must be advised that the Veteran's stressor of being exposed to mortar and rocket attacks in February 1968 has been verified, and must ask the Veteran about this stressor even if not identified by the Veteran as a stressor during the examination. The examination report should include a detailed account of all psychiatric pathology found to be present. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. b. Following review of the claims file and examination of the Veteran, the examiner should clearly identify all psychiatric disorders found. If PTSD is diagnosed, the examiner should indicate the stressor(s) upon which the diagnosis is based. c. With respect to each diagnosed psychiatric disability (other than a personality disorder), the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the current psychiatric disability arose during service or is otherwise related to any incident of service. d. The reasoning for the conclusions reached must be provided. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. 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). 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. 2012). _________________________________________________ K. A. BANFIELD 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) (2012).