Citation Nr: 1306841 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-37 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that the RO has characterized the claim for service connection of PTSD. A claim for service connection of a disorder may be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As the record also discloses a possible assessment of depression, the Board has re-characterized the claim. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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 In furtherance of substantiating his claim, which was received by VA on September 19, 2007, the Veteran was afforded 2 separate VA examinations in November 2007 and June 2012. Neither examination resulted in an assessment of PTSD or any other psychiatric disability, although PTSD and depression had been noted, albeit separately, in November 2003 VA records. Moreover, apparently beginning in October 2009, the Veteran received individual psychotherapy for PTSD through VA. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the United States Court of Appeals for Veterans Claims (Court) found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the Court found that, "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Pursuant to 38 C.F.R. § 4.2 (2012), it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. In a February 2013 Informal Hearing Presentation (IHP), the Veteran's representative requested that the claim be remanded to afford the Veteran another VA examination. In particular, the representative requested that a new examination be ordered as neither examination addressed whether the Veteran had a psychiatric disability, to include PTSD and depression, at any time during the course of the present claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). Notably, the 2009 psychotherapy records document PTSD. See 38 C.F.R. § 4.125(a). Accordingly, the matter is remanded. 38 C.F.R. § 4.2. On remand, VA records pertaining to mental health assessment and treatment must be obtained. In this regard, it appears that the Veteran has been treated by VA for mental health symptoms since 2003. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA records pertaining to mental health assessment and treatment dating from 2003. 2. Then, schedule the Veteran for a VA examination for the purpose of ascertaining the, presence, nature and likely etiology of any diagnosed psychiatric disability, to include PTSD and depression. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims file should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed disability, including the diagnosed PTSD and depression, are attributable to service. Any and all opinions must be accompanied by a complete rationale. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 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). _________________________________________________ S. S. TOTH 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).