Citation Nr: 1319344 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-37 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971. This matter was received by the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. It is on appeal from a May 2008 rating decision. The Veteran requested a hearing before the Board, but in a statement received in October 2012 the Veteran's attorney withdrew the request. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In May 2013, the Veteran's attorney submitted VA mental health consult records dated in November 2012, which are labeled pages 42 through 45, and appear to be part of a larger number of contemporaneous VA treatment records. However, other than these submitted records, the most recent VA treatment records in the claims file are dated in November 2005. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As there appear to be pertinent outstanding VA treatment records, the RO should obtain any such records dated from November 2005 to the present. Also, in May 2013, the Veteran's attorney submitted a May 2013 report from R.W., LMHC, indicating that R.W. had provided mental health treatment to the Veteran on a weekly basis from October 2010 to April 2011, and giving a diagnosis and opinion regarding the nature and etiology of an acquired psychiatric disability in part based on such treatment. However, no treatment records from R.W. are of record. Such statements from the Veteran's attorney, clearly indicating additional evidence is available, but they not providing this evidence, only delays the full adjudication of the Veteran's case. Simply stated, as the Veteran's attorney is well aware, the attorney should have submitted all of the evidence pertinent to this claim, not extracts. As such, on remand, the RO should contact the Veteran and his attorney and request that, to expedite the Veteran's claim, they specifically identify any pertinent outstanding treatment records and provide sufficient information and authorization to obtain any such records, and specifically any records from R.W., LMHC, dated from October 2010 to April 2011. Furthermore, the Veteran was provided a VA examination in March 2012, at which time the examiner opined that the Veteran did not have a diagnosis of PTSD, but had a diagnosis of anxiety disorder, not otherwise specified, subthreshold PTSD. The examiner did not, however, express an opinion as to whether any such psychiatric disorder was in any way related to the Veteran's service. Also, in her May 2013 opinion, R.W. concluded that the Veteran was very likely suffering from the same condition with which he was diagnosed in service, citing a November 1971 service treatment record reflecting that the Veteran complained of nervousness and insomnia and was prescribed valium. However, this service treatment record reflects that the Veteran complained of nervousness and insomnia associated with the rushed conditions of a premature date eligible for return from overseas; R.W. did not explain why, in light of this, the Veteran's in-service symptoms were a manifestation of a current disability more than 40 years later. Under these circumstances, another VA examination is warranted to ascertain whether a current acquired psychiatric disorder is related to service. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his attorney and request that, to expedite the Veteran's claim, they specifically identify any pertinent outstanding treatment records and provide sufficient information and authorization to obtain any such records, to specifically include any records from R.W., LMHC, dated from October 2010 to April 2011. To expedite this case (and avoid more delay) they should submit these records themselves. When all pertinent records have been submitted, the Veteran's attorney should so indicate to avoid more delay beyond the delay already caused in this case. 2. Obtain all outstanding VA medical records related to the Veteran's claimed acquired psychiatric disorder dated from November 2005 to the present. All records and/or responses received should be associated with the claims file. 3. Schedule the Veteran for a VA examination for the purpose of ascertaining the etiology of an acquired psychiatric disorder (if any). The claims file should be provided for the examiner's review in conjunction with the examination, and the examination report should indicate that the claims file was reviewed. Following a thorough evaluation, the examiner should identify any acquired psychiatric disorders(s). If PTSD is diagnosed, the examiner should provide an opinion as to whether PTSD is at least as likely as not (50 percent or greater likelihood) related to any in-service stressful event or events and, if so, to what in-service stressful event(s). The examiner should provide a detailed rationale for the opinion. If the requested opinion cannot be given, the examiner should state why an opinion cannot be provided. If an acquired psychiatric disorder other than PTSD is diagnosed, the examiner should provide an opinion as to whether such acquired psychiatric disorder is at least as likely as not (50 percent or greater likelihood) related to service. The examiner should provide a detailed rationale for the opinion. If the requested opinion cannot be given, the examiner should state why an opinion cannot be provided. In making these determinations, in addition to the service and post-service records generally, the examiner should specifically consider the November 1971 service treatment record reflecting that the Veteran complained of nervousness and insomnia associated with the rushed conditions of a premature date eligible for return from overseas; the March 2012 VA examination report; the May 2013 report from R.W., LMHC; and the November 2012 VA treatment record indicating diagnoses of anxiety disorder and PTSD. 4. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his attorney, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). _________________________________________________ JOHN J. CROWLEY 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).