Citation Nr: 1323255 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-44 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a schizophreniform disorder, and major depressive disorder with psychotic features. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from January 1980 to January 1987 and from October 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the Veteran's October 2009 substantive appeal (VA Form 9), she requested a Board hearing before a Veterans Law Judge sitting at the RO and in an attachment she also requested a Decision Review Officer (DRO) hearing at the RO. In January 2010 the Veteran's service representative, on the Veteran's behalf, withdrew the request for a DRO hearing, but confirmed that the Veteran desired a Board hearing at the RO. However, in January 2012 the Veteran cancelled the request for a Board hearing. See 38 C.F.R. § 20.702(e) (2012) (a request for a hearing may be withdrawn by an appellant or the appellant's representative at any time before the date of a hearing). Additional evidence has been received since the September 2009 Statement of the Case (SOC), but in June 2013 the Veteran's service representative waived initial agency of original jurisdiction (AOJ) consideration of such evidence. See 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such evidence. The Veteran originally filed a claim for service connection for PTSD, which was denied in the February 2008 rating decision on appeal. However, the Board notes that the VA treatment records showing various diagnoses for her symptomatology. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim 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 (2009). Thus, the Veteran's claim has been captioned as shown on the first page of this decision to reflect the inclusion of all currently diagnosed acquired psychiatric disorders, to include schizophreniform disorder and major depressive disorder with psychotic features. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file did not reveal any additional evidence pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.119 (2012). The Veteran's service representative notes, in his Informal Hearing Presentation of June 2013, that the Veteran has reported that she saw a VA physician in Pensacola, Florida, sometime in 1996 with respect to an unrelated matter but had reported to the physician that she had "PTSD." Additionally, in the Veteran's September 2007 claim she reported receiving psychiatric treatment at the Panama City VA OPT clinic. The Board observes that VA outpatient treatment (VAOPT) records dated prior to 1999 are not on file. Additionally, the Veteran underwent VA psychiatric hospitalization in May 2008 and she has reported having been in a VA Psychiatric Residential Rehabilitation Program from November 2012 to December 2012 at the Biloxi, Mississippi, VA facility. However, these records are not on file. Therefore, while on remand, the Veteran should be given an opportunity to identify any outstanding treatment records referable to her acquired psychiatric disorder and, thereafter, all identified records, to include the aforementioned, should be obtained for consideration in her appeal. The Veteran's service representative also noted that the Veteran alleges she has PTSD as a result of a SCUD missile attack while stationed in Kuwait and observes that the statement of the case (SOC) (at pages 25 and 26) reported that a service treatment record of March 27, 1991, noted that in February 1991 she went on sick call at Khobar Towers after hurting her leg and foot due to a SCUD attack. That SOC also noted that the Veteran was hospitalized in May 2008, following a suicide attempt, and the diagnosis was a schizophreniform disorder. The SOC also indicated that, because the evidence showed a military stressor and symptoms of PTSD, for which she had attended women's PTSD groups and received counseling, she was afforded a VA psychiatric examination in September 2009 (which was conducted by a psychologist) to determine if she met the diagnostic criteria for PTSD. That examination noted her complaints of feeling stressed and having auditory hallucinations. However, psychological testing results were inconsistent with a diagnosis of PTSD. The diagnosis was a major depressive disorder, recurrent, severe, with psychotic features. PTSD was not diagnosed because the objective testing did not conform to DSM-IV guidelines for a diagnosis of PTSD in the context of an external incentive, i.e., disability benefits, and that the prior diagnoses of PTSD were in a clinical context in which different diagnostic guidelines applied and the prior diagnoses of PTSD appeared to have been predominantly based on her subjective report of symptoms. Therefore, the examiner determined that, as the Veteran did not have PTSD, it was not caused by or a result of an in-service event. However, he did not offer an etiological opinion regarding any other acquired psychiatric disorder. The Veteran's service representative has requested that following the obtaining of the aforementioned records the Veteran be afforded a VA examination as to whether any psychiatric condition, to include her currently diagnosed schizophreniform disorder as well as major depressive disorder with psychotic features, is related to her military service, in keeping with the holding in Clemons, 23 Vet. App. 1 (2009). Therefore, as the examiner did not offer an etiological opinion on a psychiatric disorder other than PTSD, the Veteran should be afforded another VA examination to determine the nature and etiology of any acquired psychiatric disorder found to be present. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated her acquired psychiatric disorder since service. Thereafter, all identified records, to include VA treatment records from the Pensacola, Panama City, and Biloxi VA facilities dated from 1996 to the present, to include hospitalizations in May 2008 and November 2012 to December 2012, should be obtained. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of a verified in-service stressor. In this regard, the examiner is advised that the stressor pertaining to a SCUD missile attack while the Veteran was stationed in Kuwait is considered verified. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include experiencing a SCUD missile attack while she was stationed in Kuwait. The examiner should also indicate whether the Veteran manifested a psychosis within one year of her service discharge in January 1987 or July 1991 and, if so, should describe the manifestations of such psychosis. For VA purposes, a 'psychosis' includes a brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any of the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).