Citation Nr: 1313085 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-14 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include schizoaffective disorder, bipolar disorder with psychotic features, and posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from November 1998 to April 1999, and from January 2007 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) in April 2011. A transcript of that hearing is of record and associated with the claims folder. 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 The Veteran asserts in essence, that service connection is warranted for an acquired psychiatric disorder, to include PTSD, based upon service incurrence. His claim includes the assertion that he has PTSD due to a personal assault in service. Specifically, he maintains that during his second period of active duty, he was physically assaulted by other servicemen, wherein he was beaten and kicked in the head. In this regard, the Veteran's service treatment reports show that he was treated for an assault, i.e., he was kicked in the head, on July 4, 2007, with notations of "bipolar" and "depression." See July 2007 report from Irwin Army Community Hospital; July 2007 medical record (DA Form 4700). The clinical impression was "contusion." The Board notes, however, that the Veteran's service treatment reports contain a number of findings warranting a careful review, and that a report dated a day prior to the Veteran's treatment for a contusion (i.e., on July 3, 2007), noted severe symptoms of bipolar disorder. In addition to diagnoses of PTSD, the medical evidence includes diagnoses of a number of acquired psychiatric disorders other than PTSD, to include depression, schizoaffective disorder, bipolar disorder, anxiety, and other psychiatric diagnoses. Thus, the issue in this case must be framed broadly, and it has been recharacterized as "entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, bipolar disorder with psychotic features, and PTSD." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the issue involves both an acquired psychiatric disorder (other than PTSD), and PTSD, these are considered to be inextricably intertwined, and they must therefore be adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board finds that a remand of the claim is required. First, it is unclear if the Veteran is receiving benefits from the SSA. See e.g., November 2010 VA progress note. On remand, the Veteran should be requested to state whether or not he is receiving SSA disability benefits, and, if so, those records should be obtained. During his hearing, the Veteran testified that his first sergeant may have filed a complaint or report following the Veteran's July 2007 assault. On remand, an attempt should be made to obtain any such report. See e.g. VA Adjudication Procedure Manual, M21-1MR, Part IV.ii.1.D.13.h. In August 2008, the Veteran was afforded a VA psychiatric examination. The Axis I diagnosis was PTSD, severe. The examiner did not provide an etiological opinion. The Veteran should be rescheduled for a VA psychiatric examination by a medical professional with appropriate expertise to determine the likelihood that the any current acquired psychiatric disorder is related to the personal assault incurred in service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Board notes that since the August 2008 VA examination, a great deal of medical evidence has been associated with the claims file, rendering this report less probative, Elkins v. Brown, 5 Vet. App. 474, 478 (1993), and that this evidence is not accompanied by a waiver of RO review, nor has it been reviewed by the RO. See 38 C.F.R. § 20.1304(c) (2012). The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to state whether or not the SSA has granted him disability benefits. If so, attempt to obtain the SSA's decision pertaining to the Veteran's claim for disability benefits, and its supporting medical records. 2. The RO/AMC should prepare a letter asking the U.S. Army and Joint Services Records Research Center (JSRRC) to provide any reports involving the Veteran's July 2007 assault. The RO should provide the JSRRC with copies of the Veteran's personnel records showing service dates, duties, and units of assignment, and a copy of this Remand. 3. After the development requested in the first two paragraphs of this remand have been completed, schedule the Veteran for a VA psychiatric examination to determine his correct diagnosis(es), to include whether he has PTSD under the criteria as set forth in DSM- IV. The claims file should be provided to the examiner in connection with the examination, and the examiner should indicate that the Veteran's C-file has been reviewed. All necessary studies or tests, including appropriate psychological testing and evaluation, is to be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that any diagnosed acquired psychiatric disorder, to include PTSD, was caused by the Veteran's service. If PTSD is diagnosed, the examiner must state the stressor(s) relied upon to support the diagnosis. The report of examination should include the complete rationale for all opinions expressed. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. The RO should then readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ T. STEPHEN ECKERMAN 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).