Citation Nr: 1317895 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-17 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, mood disorder, and adjustment disorder. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for glaucoma, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from June 1960 to August 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran submitted a Notice of Disagreement (NOD) with this determination in September 2007, and perfected his appeal in April 2009. In a January 2008 letter, the Veteran requested a local hearing at the RO, either Video Conference or Travel Board hearing. Subsequently, the RO scheduled and held a Decision Review Officer (DRO) personal hearing in February 2009. On the April 2009 Substantive Appeal, the Veteran indicated that he did not wish to have a BVA hearing, and requested a DRO review of his case. Consequently, the RO sent an October 2011 notice letter to the Veteran informing him that he was provided a DRO hearing in February 2009, and unless he had additional compelling evidence, a second DRO hearing would serve no purpose. He was then informed that he could request a Travel Board Hearing. However, the Veteran did not subsequently request a BVA hearing after this notice was sent. 38 U.S.C.A. § 20.704(d) (2012). Although the RO framed the issue on appeal as entitlement to service connection for PTSD, a review of the record indicates that the Veteran has also been diagnosed with depression, anxiety, mood disorder, and adjustment disorder. Recent case law mandates that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board has recharacterized the issue of entitlement to service connection for PTSD to the broader issue of entitlement of service connection for an acquired psychiatric disorder, as is reflected on the cover page. See Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005), Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of service connection for an acquired psychiatric disorder, diabetes mellitus, and glaucoma. Initially, a review of the claims folder reveals that the Veteran was awarded Social Security Disability Insurance benefits from the Social Security Administration (SSA). Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The claims file contains a July 2006 VA treatment record, where the Veteran reported that he was receiving Social Security Disability. However, the records regarding that application and decision have not been associated with the claims folder. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); Voerth v. West, 13 Vet. App. 117 (1999); Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, this appeal must be remanded in order to obtain the Veteran's complete SSA record. Additionally, the Veteran contends that he has an acquired psychiatric disorder as a result of in-service incidents in the Navy, while stationed on the U.S.S. Pyro. The Veteran reported that someone tried to blow up the ship while he was stationed on it. He also reported that being in the Vietnam territory caused him stress. Further, he reported that a sailor dropped a shell, and it had to be discarded overboard within a few seconds. Lastly, he stated that with multiple health problems and the current military involvement in the war again, he had recurring thoughts and fears. In January 2007, the RO made a formal finding of a lack of information required to verify stressors in connection with the Veteran's service connection claim for PTSD. VA treatment records show diagnoses and treatment for PTSD, depression, anxiety, mood disorder, and adjustment disorder. The Veteran reported that he was not in a combat zone, but served during Vietnam. VA records show that the Veteran has a mood disorder due to general medical condition. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although VA records show that he is currently being treated for an acquired psychiatric disorder, which he has related to in-service incidents and his current medical conditions, the VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's acquired psychiatric disorder. A medical opinion regarding an etiology of the Veteran's PTSD and whether it was caused or aggravated by his service-connected disability should be obtained. Lastly, a remand is also necessary to obtain outstanding VA and private medical records. The record reflects that the Veteran was receiving periodic treatment for his claimed conditions at the VA through February 2007 and private physicians through April 2006. It is unclear to the Board whether the Veteran continued to seek treatment for his claimed conditions after that time. Because it appears that there may be outstanding VA and private medical records that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1) Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims folder, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 2) The AMC should obtain any of the Veteran's outstanding VA treatment records dating from February 2007 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The RO/AMC should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers, who have treated him for diabetes mellitus, glaucoma, and an acquired psychiatric disorder. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3) After the foregoing, the AMC should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current acquired psychiatric disorder, to include PTSD, adjustment disorder, mood disorder, anxiety, and depression. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported in detail. The examiner is requested to provide an opinion as to the diagnosis, date of onset, and etiology of any acquired psychiatric disorder found to be present. A. If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether the alleged stressor in the examiner's opinion was sufficient to produce PTSD (thus, even if the incident did not actually occur, whether the fact that the Veteran believes the incident occurred is sufficient to produce PTSD); (2) whether each diagnostic criterion to support the diagnosis of PTSD has been satisfied; and (3) whether there is a link between the current symptomatology and the in-service stressor sufficient to produce PTSD. B. If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion on whether it is at least as likely as not (50 percent or greater probability) that any currently demonstrated psychiatric disorder, other than PTSD, had its onset during active service or is related to any in-service disease, event, or injury C. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed acquired psychiatric disorder was caused and/or aggravated (permanently worsened) by a service-connected disability (asbestosis). Please specifically address whether there was any increase in severity of the Veteran's acquired psychiatric disorder that was proximately due to or the result of the Veteran's service-connected disability, and not due to the natural progress of the Veteran's acquired psychiatric disorder. The examiner should review and discuss the Veteran's service treatment records, VA outpatient treatment records, private treatment records, the February 2009 DRO hearing transcript, lay statements, and any other relevant information. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. If a claim remains denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ WAYNE M. BRAEUER 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).