Citation Nr: 1317740 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-37 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disability, to include depression, psychotic disorder not otherwise specified (NOS), panic disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel REMAND The Veteran served on active duty from December 1956 to December 1958 and from November 1990 to April 1991. He also had various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In March 2013, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran was afforded a VA examination in December 2008 to assess the nature and etiology of his claimed psychiatric disability and he was diagnosed as having depressive disorder NOS. The physician who conducted the examination opined that the Veteran met the DSM IV stressor criteria for PTSD as well as the symptom criteria for persistent re-experiencing of a traumatic event. However, he did not fulfill the symptom criteria for persistent avoidance of stimulus or persistent arousal. In July 2010, the examiner who had conducted the December 2008 VA examination reviewed the Veteran's claims file and opined that the diagnosed depressive disorder NOS was not caused by or a result of the stressors that the Veteran reported during the Persian Gulf War. The examiner reasoned that there was no evidence of any psychiatric complaints, findings, or treatment prior to service, during service, or within one year after service. The Veteran sought psychiatric care in 2006, which was fifteen years following his separation from service. Also, he was gainfully employed until 2000, at which time he retired because he was eligible by age and duration of work. The Veteran subsequently submitted an October 2009 letter from Sylma Batista, M.D. in which Dr. Batista stated that he was treating the Veteran for PTSD "secondary to [the] Persian Gulf War." He also submitted an October 2010 examination report from Fernando Cabrera, Jr., M.D., D.F.A.P.A., which includes diagnoses of major depression, panic disorder, and PTSD. Dr. Cabrera opined that the Veteran was "emotionally affected since 1990 since he was at the Desert Storm war from 1990 to 1991." Moreover, the Veteran reported in his September 2010 substantive appeal (VA Form 9) that he sought VA psychiatric care as early as 1996, but that he was never referred for treatment at that time. In light of the fact that the physician who provided the July 2010 opinion did not review the October 2009 letter from Dr. Batista or the October 2010 examination report from Dr. Cabrera and the fact that the examiner was unable to consider the Veteran's report of attempted psychiatric care as early as 1996, the December 2008 examination and July 2010 opinion are insufficient. In this regard, a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Thus, a remand is necessary to afford the Veteran a new VA examination to assess the onset and causes of current psychiatric disability. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In August 2008, the Veteran submitted a VA mental health clinic treatment note dated in May 2006. Also, he has reported that he sought VA psychiatric treatment beginning in 1996. The VA treatment records in the claims file and among the Veteran's paperless records in the Virtual VA system that have been obtained by the agency of original jurisdiction (AOJ) are from the San Juan Vista electronic records system and are dated in July 2004, from April 2007 to December 2008, and from September 2010 to February 2012. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Furthermore, Dr. Batista reported in his October 2009 letter that he had been providing the Veteran with psychiatric treatment since July 2008. There are no treatment records from this physician in the claims file or among the Veteran's paperless records in the Virtual VA system. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to any relevant treatment records from Dr. Batista. Any additional psychiatric treatment records are directly relevant to the issue on appeal. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received post-service treatment for a psychiatric disability, to include the dates of any such treatment. The Veteran should also be asked to complete authorizations for VA to obtain all records of his treatment for a psychiatric disability from Dr. Batista and from any other sufficiently identified private treatment provider from whom records have not already been obtained. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. 2. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability contained in the San Juan Vista electronic records system and dated prior to July 2004, from July 2004 through April 2007, from December 2008 through September 2010, and from February 2012 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA psychiatric examination to assess the etiology of all current psychiatric disabilities, including PTSD. All indicated tests and studies shall be conducted. Psychological testing should be done with a view toward determining whether the Veteran in fact has PTSD. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with records obtained pursuant to this remand, must be sent to the examiner for review. With respect to each current psychiatric disability identified (i.e. any psychiatric disability diagnosed since January 2008), the examiner shall answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the psychiatric disability had its onset in service, had its onset in the year immediately following service (in the case of any current psychosis), is related to the Veteran's reported stressors in service, or is otherwise the result of a disease or injury in service? (b) If the Veteran meets the criteria for a diagnosis of PTSD, what are the stressors supporting the diagnosis? In formulating the above opinions, the examiner must acknowledge and comment on all psychiatric disabilities diagnosed since January 2008 (including the diagnoses included in Dr. Batista's October 2009 letter and the October 2010 examination report from Dr. Cabrera), all of the Veteran's reported stressors in service, and his reports of attempting to seek psychiatric treatment as early as 1996. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report stressors in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or continuity thereof, the examiner must provide a reason for doing so. (The absence of evidence of a particular stressor or of treatment for psychiatric problems in the Veteran's service records cannot, standing alone, serve as the basis for a negative opinion.) If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 5. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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 case 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). _______________________________ MARK F. HALSEY 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).