Citation Nr: 1313103 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-48 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than panic attacks, anxiety, and major depression, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Kenneth Carpenter, Attorney at Law ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from August 31, 1973, to May 1, 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for PTSD. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board notes that the present appeal arises from the Veteran's April 2009 claim for service connection for PTSD, which was denied in the July 2009 rating decision on appeal. The Board observes that his claim of entitlement to service connection for panic attacks, anxiety, and major depression was previously denied in a May 2007 rating decision. The Veteran entered a notice of disagreement in June 2007 and a statement of the case was issued in May 2008; however, he did not enter a timely substantive appeal as to such denial. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record). However, the Board notes that the United States Court of Appeals for the Federal Circuit has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Further, the Court has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively-after there has been a finding of fact based upon competent medical evidence. See Clemons at 8. In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. Therefore, under Boggs and Ephraim, the Veteran's claim of entitlement to service connection for PTSD is separate and distinct from his previously denied claim for service connection for panic attacks, anxiety, and major depression. Therefore, based on the foregoing, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder other than panic attacks, anxiety, and major depression, to include PTSD. This appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, as a result of his in-service stressors of being punched in the heart and hit in the head/neck area until he passed out by superior officers. Therefore, he claims that service connection for such disorder is warranted. As an initial matter, the Board finds that a remand is necessary in order to obtain outstanding records. In this regard, a May 2010 VA outpatient treatment (VAOPT) record reflects that the Veteran reported having been awarded Social Security Administration (SSA) disability compensation benefits. It is not clear but it is possible that this was based at least in part upon psychiatric disability. These records are not on file but should be obtained since the award may have been predicated, at least in part, upon psychiatric disability which is the very matter now on appeal. See generally Golz v. Shinseki, 590 F.3d 1317 (Fed.Cir. 2010) (if VA is on notice of existence of potentially relevant SSA records they must be obtained even if not requested by the claimant (or in this case, even if not requested by the claimant's attorney). The Board further finds that a remand is necessary in order to obtain any outstanding VA treatment records. In this regard, the Board notes that, as indicated in the September 2010 statement of the case, the Veteran has received treatment from various VA facilities over the years, to include Denver, Colorado (November 2005 to June 2010); Salt Lake City, Utah (November 2009); and Las Vegas, Nevada (January 2002 to February 2010). Likewise, the November 2011 supplemental statement of the case reflects that the Veteran received treatment from the Las Vegas VA Medical Center from February 2010 to November 2011. In this regard, the September 2010 statement of the case and November 2011 supplemental statement of the case indicate that an electronic review of such records was conducted. However, a copy of the complete records does not appear to be contained in the paper or Virtual claims file. Additionally, it is unclear whether the Veteran has received post-service psychiatric treatment from a non-VA source. Therefore, while on remand, the Veteran and his attorney should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for an acquired psychiatric disorder. Thereafter, all identified records, to include a complete copy of all VA treatment records referenced in the September 2010 statement of the case and November 2011 supplemental statement of the case as well as VA records from the Las Vegas facility dated from November 2011 to the present, should be obtained for consideration in the Veteran's appeal. The Board further finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his acquired psychiatric disorder. In this regard, in personal assault claims, an after-the-fact medical nexus evidence to etiologically link a PTSD diagnosis to an incident during the Veteran's military service is permitted. See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). Moreover, in a February 2010 letter, the Veteran's treating physician and licensed social worker indicated that the Veteran was being treated for PTSD and that the Veteran had indicated that his anxiety was due to the alleged physical assault he was subjected to while in basic training. Therefore, the Board finds that the Veteran should be afforded a VA examination so as to determine the current nature and etiology of his acquired psychiatric disorder, to include whether he has PTSD as a result of an in-service personal assault. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain all records from that agency concerning the Veteran's award of disability benefits, including a copy of the decision and any medical records used to make the determination. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran also should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his acquired psychiatric disorder. After securing any necessary authorization from him, obtain all identified treatment records, to include a complete copy of all VA treatment records referenced in the September 2010 statement of the case and November 2011 supplemental statement of the case as well as VA records from the Las Vegas facility dated from November 2011 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completion of the above development and associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his acquired psychiatric disorder other than other than panic attacks, anxiety, and major depression, to include PTSD. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All appropriate testing should be conducted. The examiner should identify all of the appellant's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of an in-service personal assault. In this regard, the examiner should consider the Veteran's allegations regarding assaults by his superior officer(s) as well as any behavior changes subsequent to the alleged assaults. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include his alleged in-service personal assaults. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology, as well as his treating VA physician's statements in February 2010, which appears to relate psychiatric symptoms to military service based on the Veteran's own statements. It would be helpful if the examiner were to also address the Veteran's clinical history, particularly with respect of preservice physical abuse by a step-father, preservice sexual abuse, and preservice substance abuse. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).