Citation Nr: 1322796 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 93-07 167A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2010, the Veteran testified at a Board hearing before the undersigned. A transcript of that hearing is of record. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD (previously characterized as entitlement to service connection for PTSD), was previously before the Board in March 1992, when the Board denied the Veteran's claim. The Veteran subsequently submitted claims to reopen the issue, and in June 2010, the Board reopened the Veteran's claim and denied it on the merits. The Veteran then appealed the June 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in February 2011, the Court vacated the Board's June 2010 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). As a result, this matter was again before the Board in February 2012, when the Board denied the Veteran's claim. The Veteran appealed the February 2012 Board decision to the Court. In an Order dated in September 2012, the Court vacated the Board's February 2012 decision and remanded the case to the Board for development pursuant to a JMR. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has an acquired psychiatric disorder as the result of traumatizing events experienced in active duty service. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012) [i.e., a diagnosis under Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV)]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304(f) (2012); Cohen v. Brown, 10 Vet. App. 128, 137 (1997). In January 2008, the Veteran underwent VA examination in connection with his claim. The VA examiner reviewed the Veteran's claims file and indicated that the Veteran's reported stressors had been corroborated by the other evidence of record. The VA examiner also found that the Veteran met the DSM-IV stressor criterion based on combat exposure. After a psychological examination, the VA examiner determined that although the Veteran had some mild posttraumatic symptoms, he did not meet the full criteria for PTSD at that time. The VA examiner diagnosed anxiety disorder, not otherwise specified, with symptoms of PTSD. Because the VA examiner found the Veteran did not meet the full criteria for PTSD, he did not provide an opinion with respect to whether PTSD was due to the Veteran's reported stressors. Here, the Board finds the January 2008 VA examination inadequate for purposes of determining service connection. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the VA examiner found the Veteran did not meet the full criteria for a diagnosis of PTSD, he did provide a diagnosis of anxiety disorder, not otherwise specified. It is well established that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (1997). Furthermore, the Court has held that the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a result, the Board finds an opinion is necessary as to whether any acquired psychiatric disorder diagnosed during the pendency of the appeal is related to active duty service. In addition, in light of the evidence added to the record subsequent to the January 2008 VA examination, the Board finds an additional VA examination is necessary so that the requested opinion can be based upon a complete review of the record. Therefore, in order to satisfy VA's duty to assist, and in accordance with the September 2012 JMR, the Board finds a remand is warranted in order to afford the Veteran an additional VA examination with respect to the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the paper claims folder or the Veteran's Virtual eFolder all relevant treatment records developed from March 2013 to the present. 2. Schedule the Veteran for a VA examination for the purpose of ascertaining the etiology of any acquired psychiatric disorder diagnosed during the pendency of the appeal. The claims file should be made available to the examiner in conjunction with the examination. Any pertinent records in the Veteran's Virtual eFolder must also be made available to the examiner, particularly the May 4, 2012 psychiatric note. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Based on a review of the claims file, to include the service treatment records, the examination findings, and the Veteran's lay testimony describing his experiences and symptoms during and after active duty, the examiner should render any relevant diagnoses pertaining to the claim for an acquired psychiatric disorder. The examiner should then provide a medical opinion as to whether it is at least as likely as not (50 percent probability or more) that any acquired psychiatric disorder diagnosed during the pendency of the appeal was incurred in or due to the Veteran's active duty service. If PTSD is found, the examiner should identify the in-service stressors that resulted in the current psychiatric symptoms. The examiner is directed to consider all evidence of previously diagnosed acquired psychiatric disorders demonstrated in the claims file. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims file and must indicate that it was sent to his last known address of record. If the Veteran fails to report, the claims file must indicate whether the notification letter was returned as undeliverable. 4. Following completion of the above-requested development, re-adjudicate the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided with a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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). _________________________________________________ L. M. BARNARD Acting 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).