Citation Nr: 1315072 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 05-16 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active service from December 1978 to February 1979. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified before the undersigned at a Board hearing in October 2009. A transcript of the hearing is in the file. This claim was remanded in May 2009, December 2009, June 2011, and June 2012. The issue of individual unemployability (TDIU) has been raised by the record, in correspondence from the Veteran dated February 2011, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Veteran is not service-connected for any disability at this time and thus, further finds that referral is required rather than remand at this time. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 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 instant claim for PTSD is predicated on a contention of personal assault. The June 2012 notice letter issued to the Veteran referenced 38 C.F.R. § 3.304(f)(3), or the "fear"-based regulation regarding PTSD, without providing more relevant notice specific to claims of personal assault found at 38 C.F.R. § 3.304(f)(5). Therefore, a corrective notice letter should be issued that informs the Veteran of the provisions of 38 C.F.R. § 3.304(f)(5). Additionally, a March 2003 record showed that the Veteran started receiving Supplemental Security Income (SSI) from the Social Security Administration (SSA) in 2003. In January 2004, a VA social worker noted that he was on SSI since the earthquake for "arthritis in his hands and stress." A March 2004 VA treatment record stated he was receiving money from Social Security "related to the 1988 earthquake." A March 2005 social worker record also simply stated the Veteran was receiving "Social Security." Other records also reference this benefit, although it is unclear what disability the award is based on. SSA records are not currently in either the paper or electronic file. On remand, all SSA records should be requested and associated with the file. A negative reply is requested if the records are unavailable and the Veteran should be notified. 38 C.F.R. § 3.159(e)(1) (2012). The duty to assist requires that such records must be requested where they may be relevant to the issues on appeal. See Golz v. Shinseki, 590 F.3d 1317, 1320-23 (Fed. Cir. 2010). Updated VA treatment records should also be associated with the file. Finally, if any new information added to the file addresses the etiology of a currently diagnosed psychiatric disability and conflicts with the January 2013 VA examination report and addendum, the file should be sent to the October 2012 and January 2013 examiner for consideration and an opinion. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with the notice required in 38 C.F.R. § 3.304(f)(5) with regard to the claim for service connection for PTSD based on personal assault; he should be given an appropriate opportunity to respond. 2. Request SSA records and associate them with the file. If the records are unavailable, a negative reply is requested and should be added to the file. Notice to the Veteran regarding the same must be in accordance with 38 C.F.R. § 3.159(e)(1). 3. Ensure that all updated VA records are associated with file. 4. After completing all of the development action requested above, review any newly received records. If any newer records are determined to be pertinent to the etiology of any currently diagnosed psychiatric disabilities, please return the file to the October 2012 and January 2013 VA examiner for an updated opinion, noting the information that should be considered in the opinion request. If that examiner is no longer available, then another comparably qualified individual may respond instead. Again, the examiner is asked to opine whether a diagnosis of PTSD is warranted based on a verified/corroborated stressor (such stressor should be specified). If the PTSD criteria are not met, it should be explained what criteria have not been satisfied. The examiner should additionally state whether any other diagnosed psychiatric disorder is related to active service or any incident therein. A complete rationale should accompany all opinions. 5. Re-adjudicate the claim of service connection for a psychiatric disability, to include PTSD. If the decision remains in any way adverse to the Veteran, provide him with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ ERIC S. LEBOFF 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 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).