Citation Nr: 1307492 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-08 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from November 1962 to May 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied entitlement to service connection for PTSD and a nervous condition. In April 2011, the Veteran testified during a hearing conducted via videoconference with the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Thus, in light of Clemons v. Shinseki, the Board has recharacterized the Veteran's claim as a claim for service connection for an acquired psychiatric disorder, claimed as PTSD, as set forth on the title page. The Board remanded the case to the RO, via the Appeals Management Center (AMC), in October 2011 for further development and adjudicative action. The case has been returned to the Board for further appellate review. The Board notes that the Veteran submitted additional evidence directly to the Board on multiple occasions since the most recent October 2012 supplemental statement of the case. Additionally of record is an undated document and a document dated December 2012 indicating a waiver of the Veteran's right to have the evidence initially considered by the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran has attributed his psychiatric disorder to an earthquake that occurred at Fort Richardson, Alaska, on March 27, 1964. In an October 2008 memorandum, the RO verified that the Veteran was stationed at Fort Richardson near Anchorage, at the time of the March 1964 Anchorage-area earthquake that was the largest earthquake in North America. Pursuant to Remand instructions, the Veteran was afforded a VA examination in December 2011. The examiner indicated that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. However, the examiner did diagnose the Veteran with psychotic disorder (by history). The examiner did not provide an opinion regarding the etiology of the psychotic disorder, as required by the previous remand. Though diagnosed by history only, if disability is present at any time during the pendency of the claim, service connection may be granted. See McCain v. Nicholson, 21 Vet. App. 319 (2007). In the present case, the Veteran filed his claim for compensation in August 2008 and a December 2008 VA examination report diagnosed paranoid type schizophrenia. Additionally, the Veteran indicated in a November 2012 statement that he had recent psychiatric appointments with VA practitioners. Thus, such records must be obtained on remand. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran also submitted a privacy release to obtain psychiatric records from Dr. H.G. dated from June 2012 to present. Such records must be requested on remand. The Veteran also contends that an additional request for Army Criminal Investigation Division (CID) records should be made to Fort Belvoir due to the request indicating an incorrect name. However, the AMC requested records for both of the Veteran's names of record. Thus, an additional request to CID would be futile. The Board's remand conferred on the Veteran the right to compliance with the remand orders, as a matter of law. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, as already explained herein, the Board's remand orders were not fully complied with. Thus, the AOJ is required to conduct the development requested by the Board in order for the Veteran's claim to be fully and fairly adjudicated. Accordingly, the case is REMANDED for the following action: 1. Obtain any pertinent, outstanding evidence, to include contacting any identified health care facilities and obtaining any necessary privacy release forms, specifically to include Dr. H.G. The RO or the AMC should continue its efforts to obtain any pertinent, outstanding service medical records unless additional efforts would be futile. 2. Obtain all medical records regarding the Veteran's treatment from the Nashville VA medical system April 2012 to present. If any records are unavailable, a memorandum detailing all efforts to obtain them should be placed in the claims file. 3. After completing all of the development actions requested above, return the Veteran's claims file to the December 2011 examiner, if the person is still available. If the December 2011 examiner is not available, provide the claims file to a qualified VA practitioner. The examiner should conduct an in-person psychiatric examiner if deemed necessary in providing the requisite medical opinion. The examiner must indicate whether it is likely as not (50 percent probability or greater) that any acquired psychiatric disorder, currently manifested or manifested at any time from August 2008 to present, to include paranoid schizophrenia, is related to the Veteran's active service or any incident of active service or manifested within one year of active service. The examination report should include the complete rationale for all opinions expressed. The examiner should provide a rationale for the opinions. 4. Finally, adjudicate the Veteran's claim on appeal for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond. 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. 2012). _________________________________________________ THOMAS J. DANNAHER 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).