Citation Nr: 1321692 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-00 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from November 1969 to September 1971. His awards and decorations include the Combat Infantryman Badge and the Purple Heart Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Board observes that the issue of entitlement to service connection for a psychiatric disorder was initially adjudicated as entitlement to service connection for PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). Therefore, the Board has recharacterized the issue as reflected on the title page. In March 2010, the Veteran submitted a notice of disagreement with an August 2009 rating decision that denied a rating in excess of 10 percent for service-connected pericardial effusion with myocarditis and post-operative pericardial window. The Board finds that the March 2010 correspondence from the Veteran constitutes a timely notice of disagreement; however, the RO has not yet issued a statement of the case for that issue. Therefore, as discussed below, the Board is obligated to remand the issue. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). In addition, the Veteran submitted a statement in August 2010 in which he claimed that his current ischemic heart disease is related to his military service, to include as due exposure to Agent Orange in Vietnam. However, that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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 The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. The Veteran seeks service connection for PTSD. Based on his lay testimony, awards and decorations (including a Combat Infantryman Badge and the Purple Heart Medal), and service department military citations, the Veteran has two verified stressor incidents. In particular, his unit came under attack in April 1971, which resulted in the death of his platoon sergeant and seven other men wounded. In May 1971, he was also wounded himself in Vietnam and medivaced along with two other men. The Veteran is service-connected for gunshot wounds to the left manidibular area, left foot, and left patella. At a VA examination in December 2008, the examiner found that the Veteran did not meet the criteria for a mental health diagnosis, including PTSD. However, the Board notes that the examiner appears to have only considered one of the Veteran's two verified stressors in the examination report. Further, in making the finding that the Veteran had no current psychiatric disorder, the examiner indicated in the "present medical history" section of the report that the Veteran had experienced no symptoms during the past year and that there was no current treatment for a mental disorder. By contrast, a March 2008 VA treatment record indicates that a PTSD screening was positive, based on the Veteran's reported history of past experiences that were frightening, horrible, or upsetting. In the past month, he had experienced nightmares about past experiences; found it hard not to think about the experiences; went out of his way to avoid situations that reminded him of the experiences; was constantly on guard, watchful, or easily started; and felt numb or detached from others, activities, and surroundings. This March 2008 PTSD screening was similar to a January 2007 VA PTSD screening, which was also positive. In addition, the March 2008 treatment records include a statement that the Veteran was "currently being followed for PTSD by Mental Health." The Board further notes that a September 2008 VA treatment record indicates that the Veteran had a "known history of posttraumatic stress disorder and would like to be referred for management and medication." The primary care provider prescribed Ambien for diagnosed dyssomnia and referred the Veteran to the VA mental health clinic for PTSD and also possibly to discuss his sleep disorder. As of February 2009 and March 2009 (after the date of the December 2008 VA examination), PTSD and dyssomnia were added to the Veteran's active problem list. An April 2009 treatment note also includes PTSD and dyssomnia in the Veteran's past medical history and indicates Ambien was again prescribed for dyssomnia. Without follow-up treatment records and a clarifying medical opinion, the Board does not have a means of reconciling the apparently inconsistent information as set forth in the December 2008 VA examination report as compared to what is reflected in the March 2008 and September 2008 treatment notes. Moreover, as noted, treatment records dated after the December 2008 VA examination appear to indicate that the Veteran continued to be treated or referred for treatment for PTSD. The most recent relevant treatment record associated in the claims file is from April 2009, which was over four years ago. The Board finds the there is a reasonable possibility that VA treatment records from April 2009 forward may substantiate the Veteran's claim, insofar as they may contain further information regarding planned referral for, and treatment and diagnosis of PTSD. Accordingly, these potentially relevant records of VA treatment should be sought. See 38 C.F.R. § 5103A(a)-(c). Additionally, as there appear to be conflicting medical opinions as to whether the Veteran has PTSD, the Veteran should be afforded a new VA examination and opinion that takes into account the Veteran's updated medical history and medical records. See 38 U.S.C.A. § 5103A(d). In addition, as previously noted, the Veteran submitted a timely notice of disagreement in March 2010 with an August 2009 rating decision that denied a rating in excess of 10 percent for service-connected pericardial effusion with myocarditis and post-operative pericardial window. A statement of the case has not been issued on this matter. Therefore, a remand is necessary for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should issue a statement of the case addressing the issue of entitlement to an increased evaluation for pericardial effusion with myocarditis and post-operative pericardial window. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. 2. Request that the Veteran identify all records of VA and non-VA health care providers who have treated him for a psychiatric disorder. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The records sought should also include all records of VA treatment for psychiatric disability, including PTSD or a sleep disorder, whether through a VA primary care clinic or VA mental health care clinic or any other care provider at VA, from January 2007 (the date of a positive screen test for PTSD) to the present. A March 2008 VA treatment record indicates that the Veteran was being followed at a mental health clinic, and a September 2008 record indicates that the Veteran was being referred for VA mental health care treatment. Beginning in approximately February 2009, PTSD was included on the active problem list of the Veteran's VA treatment records. The Veteran should also be advised that, with respect to private medical evidence, he may alternatively obtain the records on his own and submit them to the RO/AMC. 3. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA psychiatric examination for the purpose of determining whether it is at least as likely as not (whether there is a 50 percent or greater probability) that he has a current psychiatric disorder that began during service or is related to any incident of service. The RO/AMC should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The examiner should take a complete history from the Veteran as to his verified stressors. Based on awards and decorations (including a Combat Infantryman Badge and the Purple Heart Medal) and service department military citations, the Veteran has two verified stressor incidents. In April 1971, his unit came under attack, resulting in the death of his platoon sergeant and seven other men wounded. In May 1971, he was wounded himself in Vietnam and medivaced along with two other men. The Veteran is service-connected for gunshot wounds to the left mandibular area, left foot, and left patella. The examiner should take a complete history from the Veteran as to the nature and onset of his current symptoms and any post-service treatment for a psychiatric disorder. The examiner should also review the Veteran's VA treatment records for indications of screening, evaluation, or treatment of PTSD in either a VA mental health clinic setting or a primary health care provider setting. This should include January 2007 and March 2008 records indicating a positive PTSD screen, a September 2008 VA treatment records noting dyssomnia and referring the Veteran for treatment for PTSD, a December 2008 VA examination report, records indicating PTSD on the VA active problem list from approximately February 2009 forward, continuing treatment for dyssomnia in April 2009, and any relevant treatment records newly received for the period from April 2009 to the present. After examination of the Veteran, the examiner should provide a medical opinion as to whether a diagnosis of a current psychiatric disorder (whether PTSD or otherwise) is warranted. For each psychiatric disorder diagnosed, the examiner should indicate whether the disorder began during active service or is related to any incident of service, including his verified stressors. In all conclusions, the examiner should identify and explain the medical basis or bases, with identification of the relevant evidence of record. The examiner should provide a fully reasoned explanation for his or her opinions based on established medical principles and his or her clinical experience and medical expertise. 4. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ JESSICA J. WILLS 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).