Citation Nr: 1319099 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 11-19 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from May 1955 to April 1958 and from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision of the Columbia, South Carolina, Regional Office's (RO). In an April 2013 written brief, the Veteran's service representative raised the issues of entitlement to service connection for bilateral flat feet and a lumbar spine disability. Service connection for a lumbar spine disability was previously denied by the RO in a February 2011 rating action, and the Veteran did not timely appeal that issue. Accordingly, the Board interprets the April 2013 brief as an application to reopen the previously denied lumbar spine service connection claim. However, neither that issue, nor the issue of service connection for flat feet, is before the Board at this time, and they are referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran seeks service connection for an acquired psychiatric disorder. As articulated in Clemons v. Shinseki, 23 Vet. App. 1 (2009), although characterized by the Veteran as a service connection claim for PTSD, he is in fact seeking service connection for psychiatric symptoms regardless of how those symptoms are diagnosed. Although the October 2010 VA examination provides information with regard to PTSD, the VA examiner did not provide any opinion as to the onset and/or etiology of other psychiatric disabilities diagnosed during the appeal. In addition, although the VA examiner found that a diagnosis of PTSD was not warranted and declined to provide any axis I diagnosis, the examiner did not reconcile that conclusion with the assignment of a GAF score of 60 and the acknowledgement that the Veteran has PTSD that impacts his psychological functioning. Further, VA treatment records dated after the October 2010 show both an initial diagnosis of PTSD followed by ongoing diagnoses of rule out PTSD. The Board further observes that in an April 2013 brief, the Veteran's service representative asserts entitlement to a psychiatric disorder as secondary to chronic pain from service-connected disabilities. Such an opinion has not yet been solicited from a VA examiner. In light of the recent diagnosis of rule out PTSD, the new theory of contention and because the October 2010 examination report does not provide the Board with a sufficient basis to make a fair and fully informed evaluation of the Veteran's claim, the Board has no discretion and must remand the claim to obtain additional development. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, the most recent VA treatment records related to his psychiatric disability are dated in June 2012 and there may be more recent treatment records that are not of record. Under law, VA must attempt to obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). For this reason as well, the Board must remand the matter for additional development. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) , that includes the criteria for establishing entitlement to secondary service connection for psychiatric disability. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of his psychiatric symptoms in and since service, to include any possible relationship to military service. He should be provided an appropriate amount of time to submit this lay evidence. 3. Obtain, either physically or electronically, all outstanding VA treatment and/or hospitalization related to the Veteran's psychiatric condition since June 2012. All development efforts and any negative response(s) should be associated with the claims file, to include notation that no additional records are available on the Virtual VA system. 4. Schedule the Veteran for a VA psychiatric examination to determine the nature, onset and etiology of any psychiatric disability found to be present. A diagnosis of PTSD must be ruled in or excluded. The claims folder should be made available to and reviewed by the examiner, who should record the full history of the disorder, including the Veteran's report of his symptoms. The examiner must opine as to whether it is at least as likely as not that the Veteran has a psychiatric disability that is related to or had its onset in service, to specifically include the documented in-service grenade incident. The examiner must also opine as to whether it is at least as likely as not that the Veteran has a psychiatric disability that was caused or aggravated by his service-connected physical disabilities. The examination report should reflect consideration and analysis of all evidence of record, medical and lay, including (A) the Veteran's competent account of symptomatology; (B) September 2011, December 2011, March 2012, and June 2012 VA psychiatric assessments; (C) the October 2010 VA examination report; and any other evidence and any other evidence of record deemed relevant. All findings and conclusions should be supported by a complete rationale and should be set forth in a legible report. 4. Then readjudicate the appeal. If the foregoing action does not resolve the claim, a Supplemental Statement of the Case (SSOC) should be issued. An appropriate period of time should be allowed for response. Thereafter, the claim should be returned to this Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ STEVEN D. REISS 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).