Citation Nr: 1317286 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-43 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include general anxiety disorder, major depression, posttraumatic stress disorder (PTSD), and depression, not otherwise specified (NOS). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to November 1971, to include service in the Republic of Vietnam from November 17, 1970, to November 15, 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. Since the RO's most recent adjudication of the Veteran's claim in a September 2009 statement of the case, additional, pertinent evidence has been associated with the claims file. In a May 2013 statement, the Veteran's representative waived local consideration of this evidence in accordance with 38 C.F.R. § 20.1304(c) (2012). Accordingly, the Board may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Characterization of the issue on appeal In April 2007, the Veteran filed a claim to establish service connection for PTSD. In addition to a diagnosis of PTSD, the medical evidence of record reflects diagnoses of general anxiety disorder, major depression, and depression, NOS. (See VA treatment records dated in April 2007 and May 2009.) During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying psychiatric diagnoses of record, the Board has expanded the Veteran's claim to include all acquired psychiatric disabilities, and the issue has been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for an acquired psychiatric disability, which he asserts is a result of his participation in night ambush patrols while stationed in the Republic of Vietnam. The Veteran has current diagnoses of PTSD, general anxiety disorder, major depression, and depression, NOS, and, as noted in the Introduction, the Board has expanded the Veteran's claim pursuant to the Court's holding in Clemons. Throughout the pendency of the Veteran's appeal, the RO has limited its analysis of the Veteran's claim, only considering the provisions of 38 C.F.R. § 3.304(f) and the Court's holding in Cohen v. Brown, 10 Vet. App. 128 (1997), relating only to specific claims for PTSD, rather than expanding its analysis to encompass direct service connection for all diagnosed psychiatric disorders as per 38 C.F.R. § 3.303. In light of the Board's expansion and recharacterization of the Veteran's claim, the Board concludes that the Veteran's claim must be developed and analyzed under 38 C.F.R. § 3.304(f) and Cohen, relating to PTSD claims, as well as 38 C.F.R. § 3.303, pertaining to direct service connection for all diagnosed psychiatric disabilities. Review of the Veteran's service treatment records reveals no evidence of complaints of, treatment for, or diagnosis of a psychiatric disorder. It is unclear when the Veteran asserts that his psychiatric symptomatology first manifested, but he has averred that he has been experiencing symptomatology since 1971 and was initially diagnosed with PTSD in 1981. (See the Veteran's April 2007 claim.) The Board acknowledges that the RO made a formal finding in October 2008 that the information provided by the Veteran with regard to his alleged stressors was insufficient to allow for a meaningful search of the records at the U.S. Army and Joint Services Records Research Center (JSRRC). However, service records associated with the claims file after October 2008 reflect that, in addition to his duties as a switchboard operator and radioman, the Veteran was awarded the Navy Achievement Medal with a "V" device for combat in association with his voluntary participation in "over ten" night ambush patrols while stationed in the Republic of Vietnam. In light of this record, the Veteran's reported stressor event is found to be consistent with the places, types, and circumstances of the Veteran's service while in the Republic of Vietnam. To date, the Veteran has not been afforded a VA examination with respect to his claim. The Board emphasizes that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service. Id. In the present case, the Veteran has been diagnosed as having PTSD as well as general anxiety disorder, major depression, and depression, NOS. In light of the service records showing that the Veteran's claimed stressors are consistent with the places, types, and circumstances of his service, the Board finds that he should be afforded a VA examination to determine the nature and probable etiology of his diagnosed psychiatric disabilities. Under the laws and regulations pertaining to direct service connection, the aforementioned elements within the Court's holding in McLendon had been demonstrated by the evidence of record, and VA has a duty to afford the Veteran a VA examination and obtain a medical nexus opinion. Also, the laws and regulations concerning service connection claims for PTSD (specifically, 38 C.F.R. § 3.304(f)) have been amended during the pendency of this appeal. The Veteran has not been notified of these amendments. If, as here, the record has a procedural defect with respect to the notice required under the Veterans Claims Assistance Act of 2000 (the VCAA), this may not be cured by the Board. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, upon Remand, the RO should afford the Veteran with complete VCAA notice, to include the amendments to 38 C.F.R. § 3.304(f) because the Board is without authority to do so. Finally, it appears that there are outstanding VA and private treatment records which may be pertinent to the Veteran's claim. Specifically, although the most recent VA outpatient treatment records and Vet Center records associated with the claims file are dated in November 2007, a December 2009 VA inpatient discharge summary reflects that the Veteran continues to receive VA treatment at both facilities. The Court has held that records generated by VA facilities are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, updated VA treatment records should be obtained and associated with the record. Additionally, the Veteran has asserted that he receives psychiatric treatment from Dr. Winokur and Pope at the University of Connecticut Health Center. The record is devoid of any private treatment records from these clinicians or this facility. On remand, these reasonably identified records should be sought if the Veteran submits a completed release for them. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). In light of above as well as the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make further attempts to obtain the identified and pertinent private treatment records or make a formal findings that a second request for such records would be futile. Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). Accordingly, the case is REMANDED for the following actions: 1. The RO must provide the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include notice of the July 2010 amendments to 38 C.F.R. § 3.304(f) (2012). 2. Contact the Veteran and request that he identify all non-VA health care providers that have treated him for his acquired psychiatric disabilities. The Board is particularly interested in any records from the University of Connecticut Health Center, to include from Drs. Winokur and Pope. The Veteran should be provided two VA Forms 21-4142 with instructions to complete and submit them. All records obtained should be associated with the Veteran's VA claims file. In light of above as well as the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make further attempts to obtain the identified and pertinent private treatment records or make a formal finding that a second request for such records would be futile. Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 3. Obtain updated VA treatment records from the Newington VA Medical Center (VAMC) dated from November 2007 to the present, and from the Hartford Vet Center in Rocky Hill, Connecticut, dated from November 2007 to the present. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 4. Thereafter, schedule the Veteran for a VA examination in connection with his claim to establish service connection for an acquired psychiatric disability. The claims file should be reviewed in conjunction with such examination and the examination report should indicate that such a review was performed. Thereafter, the examiner should address the following: a. Identify all acquired psychiatric disabilities present on Axis I. b. for each acquired psychiatric disability identified in part (a), provide an opinion as to whether it is at least as likely as not (50 percent or greater) that such is causally related to his military service. Any opinion expressed should be accompanied by a complete rationale. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2012). 5. Thereafter, readjudicate the issue on appeal, considering all evidence of record. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. 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). _________________________________________________ U.R. POWELL 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).