Citation Nr: 1310080 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 04-38 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: David S. Russotto, Attorney at Law ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for PTSD. The Board denied the appeal in September 2007. The Veteran appealed the Board's September 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, the parties to the appeal (the Veteran, through an attorney, and a representative from VA General Counsel) filed a Joint Motion for Remand of the Board's decision (Motion). The parties agreed that the Board's decision should be vacated, and case remanded, so that the Board could address the full breadth of the Veteran's claim. More specifically, the parties agreed that although the Veteran had filed a claim for service connection for PTSD only, the evidence of record contained diagnoses of psychiatric disorders other than PTSD. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a veteran's claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). The Court granted the Motion later that same month. The Board remanded the case for additional development in August 2010 and May 2012. After taking further action, the Appeals Management Center in Washington, DC, and the RO, respectively, denied the claim on each occasion, and returned the case to the Board. For the reasons set forth below, this appeal is again being REMANDED to the RO. VA will notify the Veteran if further action is required on his part. REMAND The RO last issued a supplemental statement of the case (SSOC) pertinent to the matter on appeal in December 2012. Approximately 30 days later, in January 2013, and prior to transfer of the claims file to the Board, the Veteran's attorney submitted additional evidence in support of the Veteran's appeal. The additional evidence, consisting, in part, of records from North Florida Family Psychiatry, and containing diagnoses of PTSD and major depressive disorder, are both relevant to the Veteran's appeal and nonduplicative of evidence previously received. Under governing regulations, when additional, relevant evidence is received subsequent to the issuance of a SSOC, and prior to transfer of the claims file to the Board, the agency of original jurisdiction (AOJ) (here, the RO) is required to consider the evidence and, if the claim on appeal remains denied, issue another SSOC. 38 C.F.R. §§ 19.31(b)(1), 19.37(a) (2012). Here, that was not done. Corrective action is therefore required. The additional evidence submitted by the Veteran's attorney in January 2013 contains information (i.e., medical diagnoses of PTSD and major depressive disorder) that is in conflict with the findings contained in the report of the Veteran's most recent VA examination in June 2012 (to the effect that no such diagnostic entities were identified). The additional evidence also reflects that the Veteran has resumed and pursued VA mental health treatment since the time that the RO last obtained records of such treatment on June 27, 2012. Under the circumstances, the Board finds that it would be helpful to obtain a complete copy of all records of relevant VA treatment the Veteran may have undergone since June 27, 2012, in order to ensure that his appeal is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Thereafter, and in order to afford the Veteran all due consideration, the expanded record should be forwarded to the VA examiner who last evaluated the Veteran in June 2012, for review and comment. 38 C.F.R. § 19.9 (2012). For the reasons stated, this case is REMANDED for the following actions: 1. Ask the Veteran and his representative to provide appropriate releases for any care providers who may possess new or additional evidence pertinent to the issue on appeal. If the Veteran provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received through the VA Medical Center in Gainesville, Florida, and the VA Outpatient Clinic in Jacksonville, Florida, since June 27, 2012, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. If no further records are available, the claims file should be annotated to reflect that fact. 3. After all of the foregoing development has been completed to the extent possible, arrange to return the Veteran's claims file to the VA examiner who previously provided an examination and opinion in this case in June 2012. The examiner should be asked to review the expanded record and prepare a supplemental report indicating the extent to which, if any, the additional evidence impacts on her prior opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has PTSD or another acquired psychiatric disorder that can be attributed to his period of active military service. In so doing, the examiner should discuss the validity of the diagnoses of PTSD and major depressive disorder contained in the 2012 records from North Florida Family Psychiatry; the diagnoses of PTSD and major depressive disorder contained in a September 2012 VA psychiatry note; and December 2012 lay statements received from acquaintances of the Veteran, and from his son. If the June 2012 VA examiner is no longer employed by VA or is otherwise unavailable, arrange to obtain the requested information from another qualified examiner. If another examination is deemed warranted, one should be scheduled. A complete rationale for all opinions should be provided. 4. After conducting any additional development deemed necessary, the claim on appeal should again be reviewed. If the benefit sought remains denied, furnish a SSOC to the Veteran and his representative, and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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). _________________________________________________ MARJORIE A. AUER 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 this appeal. 38 C.F.R. § 20.1100(b) (2012).