Citation Nr: 1310822 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-48 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (hereinafter "PTSD"), anxiety and major depression. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to August 1973. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a November 2009 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Waco, Texas. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (hereinafter "Court") held that the scope of a claim should be construed based on the reasonable expectations of a non-expert, self-represented claimant, and the evidence developed during the claims process. In short, the essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). In the Veteran's case, the clinical record reflects diagnoses of various mental health disorders. Hence, the Board has accordingly characterized the issue on appeal to encompass consideration of alternative psychiatric diagnoses. The appeal is REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. With regard to the Veteran's PTSD claim, he has reported that while in the military he was verbally harassed based on his race. Specifically, he has indicated that fellow soldiers called him racial slurs, causing him great stress, caused him to receive poor ratings on his performance reviews and caused him to go absent without leave (hereinafter "AWOL") while in service. He contends that this harassment occurred on a daily basis, shortly after his entry into service, and lasted for the duration of his service. The service personnel records indicate that the Veteran's duty performance was characterized as satisfactory, although a January 1973 Airman Performance Report includes an opinion that he frequently required additional and close supervision to make certain that he performed within his potential. This report also shows an opinion that the Veteran was well-liked by his fellow soldiers. These records do not specifically show that he was charged with going AWOL; however, the DD Form 214, Certificate of Release or Discharge from Active Duty, indicates that the Veteran had excessive leave for 5 days. The service treatment records show that on Report of Medical Examination for the purpose of separation from service, dated in June 1973, the Veteran was observed to have a recent weight gain of 30 pounds due to improper eating habits attributed to nervousness and worry. An accompanying Report of Medical History shows that the Veteran indicated experiencing "Depression or excessive worry" and "Nervous trouble of any sort." The VA treatment records indicate the Veteran has undergone psychiatric treatment for depression, anxiety, and PTSD since 2004. A VA treatment record dated in December 2007, shows the Veteran reported an onset of symptoms of depression and anxiety in childhood, which were exacerbated in service. He indicated that he had been depressed for most of his life, and claimed that he was emotionally abused while in the military by fellow officers, and by his superior officer. The primary VA medical provider who has treated the Veteran for his psychiatric disorder, Nurse Practitioner M.K.M. provided an opinion in December 2010 that the Veteran's PTSD was related to racial harassment in the military. However, the Board finds the December 2010 opinion to be inadequate for VA rating purposes as it did not identify the Veteran's claimed stressor, nor did it provide more than a cursory opinion, lacking in any explanation or rationale as to why the Veteran was diagnosed with PTSD. The probative value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is nothing in the record that indicates that M.K.M. had the opportunity to review the Veteran's service record prior to giving her opinion. Moreover, the opinion did not indicate that the VA psychiatrist's diagnosis of PTSD was made in accordance with the Diagnostic and Statistical Manual of Mental Disorders (hereinafter "DSM"), 32 (4th Ed.) (1994) (hereinafter "DSM-IV"); 38 C.F.R. §§ 4.125, 4.130. Lastly, the clinical record indicates the Veteran reported that he experienced depression since childhood; however, these reports do not address whether or not the Veteran's psychiatric disorder arises from aggravation of a preexisting psychiatric disorder. The Court has held that the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that the Veteran must be scheduled for a VA examination and opinion to determine the etiology of any of any current psychiatric disorder to include based on aggravation of a preexisting condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). A remand is required for a more comprehensive and thorough VA examination and opinion in this case, with a review of the claims folder. Moreover, the Veteran has not been notified by VA of what information would substantiate his claim based on aggravation of a preexisting theory of entitlement. The RO/AMC must also provide the Veteran with appropriate Veterans Claims Assistance Act (hereinafter "VCAA") notice that addresses service connection for an acquired psychiatric disorder based on these newly raised theories of entitlement. Also, the record indicates that the Veteran receives ongoing treatment by VA. However, the most recent treatment records contained in both the electronic Virtual VA records file and paper claims file are dated until January 2011. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, VA must obtain any outstanding records. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). As this case is already being remanded for further development of the Veteran's PTSD claim, the Board will also direct the RO to provide him with appropriate notice about his appellate rights. The claims file contains a VA Form 8, Certification of Appeal, for the claim for service connection for PTSD, dated in February 2011. However, the record indicates that the RO has failed to provide the Veteran with notification regarding further submission of evidence under 38 C.F.R. § 19.36 (2012). Although certification of an appeal is an administrative function, the regulations governing the certification of appeals and notification of certification of appeal and transfer of appellate record also provide important due process safeguards for Veterans seeking appellate review of RO decision. In particular, under 38 C.F.R. § 19.36, "[w]hen an appeal is certified to the (Board) for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence . . . ." Under 38 C.F.R. § 20.1304(a), "[a]n appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation." "Notice" means written notice sent to a claimant or payee at his or her latest address of record. 38 C.F.R. § 3.1(q) (2012). In Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006), the Court determined VA erred by failing to comply with 38 C.F.R. § 19.36. Upon finding error, the Prickett Court, pursuant to 38 U.S.C. § 7261(b)(2), took into account of the rule of prejudicial error. The Court has generally held that, if not timely or inadequate, errors in notification can be effectively "cured" by providing any necessary notice and then and readjudicating the claim. That is, a statement of the case (hereinafter "SOC") or supplemental SOC (hereinafter "SSOC") can readjudicate the claim so that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In this case, at the time of a May 2011 SSOC, the Veteran's appeal had not yet been certified to the Board. The record reflects that in June 2011 an attempt was made to provide the Veteran with notice advising him of certification of appeal and of the time limits for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence, pursuant to 38 C.F.R. § 19.36. However, a notation on the envelope of this letter noted that the letter was returned to sender in July 2011 due to an unknown address. The claims file indicates that subsequent letters were sent from VA to the Veteran at a new address, which were not returned to sender. Therefore, the Board must remand the claim to comply with the requirements of 38 C.F.R. § 19.36 and a new letter must be issued to the most current address of record. Finally, the record shows that the Veteran has filed a claim for disability benefits from the Social Security Administration (hereinafter "SSA") due to his psychiatric disorder. However, the record is negative for any records related to any SSA claim. Accordingly, as there is evidence that the Veteran filed a claim for SSA benefits based on a psychiatric disability, a remand is necessary to attempt to obtain these records, as they may contain evidence pertinent to the Veteran's claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must provide the Veteran with notification regarding further submission of evidence under 38 C.F.R. § 19.36 (2012). This notification must be in writing, and must inform the Veteran of the certification and transfer described in 38 C.F.R. § 20.1304. Namely, the notice letter must specifically inform the Veteran that he and his representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. 2. The RO/AMC must provide the Veteran with appropriate VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim, to include the provisions pertaining to aggravation of a preexisting condition. The RO/AMC must also inform the Veteran of the opportunity to provide evidence or information that pertains to the process of stressor verification, and should perform any development indicated in this regard, including obtaining morning reports and other daily logs. 3. The RO/AMC must also take appropriate steps to contact the Veteran in order to obtain copies of all outstanding VA and/or non-VA treatment records referable to his acquired psychiatric disorder. The RO/AMC must then associate all documents received with the Veteran's claims file. If the records are not available, the RO/AMC must document attempts to obtain them in a memorandum and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. The RO/AMC must also take appropriate action to obtain any copies of the SSA administrative decision(s) on a claim for benefits with that agency, along with all medical records underlying that determination. The RO/AMC must then associate all documents received with the Veteran's claims file. If the records are not available, the RO/AMC must document attempts to obtain them in a memorandum and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. After completion of the above development, the RO/AMC must arrange for a VA examination with an appropriate mental health clinician. The purpose of the examination is to delineate all acquired psychiatric diagnoses identified in the clinical and lay record to account for the entirety of the Veteran's psychiatric symptomatology, and to determine the likely etiology of any acquired psychiatric disorder diagnosed, to specifically include PTSD and/or major depression. A copy of this remand and all relevant in-service and post-service treatment records, written statements, and transcript of oral testimony, must be made available to the examiner, to include any pertinent records in the Virtual VA eFile. The examiner is asked to confirm whether paper and/or electronic records were available for review. After a thorough review of the clinical and lay record, and interview of the Veteran and mental health examination, the examiner must: a) List all psychiatric diagnoses applicable to the Veteran. The examiner must determine whether the Veteran's psychiatric symptoms meet the criteria set forth for PTSD in the DSM-IV. Specific responses must be provided for each of the DSM-IV criteria. If a diagnosis of PTSD is appropriate, the examiner should state which, if any, of the Veteran's reported in-service stressors are sufficient to produce PTSD. b) The examiner must provide an opinion as to whether the Veteran's psychiatric disability began during active service or is related to any incident during active service or existed prior to service and was aggravated by service. The examiner is advised that the evidentiary standard whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." To reiterate, this evidentiary standard is different from "at least as likely as not," which is a 50 percent probability or greater. c) The examiner should specifically comment on the evidence in the clinical record that shows the Veteran reported that he experienced depression since childhood that was aggravated by his military service. d) After reviewing the record, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to each of the following questions: i) On the basis of the clinical record, can it be concluded as medically undebatable that the Veteran's psychiatric disorder preexisted his entry into active military service? ii) If it is found as medically undebatable that his psychiatric disorder did clearly preexist service, can it also be concluded as medically undebatable that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? iii) If his psychiatric disability is not found to have so preexisted service, is it as least as likely as not (a probability of 50 percent or greater) that it had its onset during active military service? e) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is requested to provide a complete rationale for her or her opinion, based on her or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion without resort to pure speculation, she or she must so state; however, a complete rationale for such a finding must be provided. 6. After completion of the above and any additional development deemed necessary, the RO/AMC should review the issue on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished an SSOC and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ D. MARTZ AMES Acting 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).