Citation Nr: 1324156 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-02 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1968. He served in the Republic of Vietnam from March 1967 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied the Veteran's claim for service connection for PTSD. The Veteran originally requested a hearing before a decision review officer (DRO) along with his January 2010 substantive appeal; however, in a July 2010 statement, the Veteran withdrew his request for a DRO hearing. The hearing request is therefore deemed withdrawn. 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 As an initial matter, the Board notes 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). In December 2008, the Veteran reported that his unit was under constant shelling during his first three days in Vietnam, and under sporadic shelling thereafter. In his October 2008 claim, the Veteran asserted that he should receive service connection for PTSD. In statements dated November 2008 and January 2009, the Veteran stated that he has depression. The Veteran's spouse described his symptoms in an April 2009 letter. The Veteran's VA treatment records reflect that he has received mental health treatment since at least July 2005. A January 2006 VA psychologist found that the results of the Veteran's neuropsychological testing were within normal limits and "there did not appear to be psychological factors (e.g. depression, anxiety, PTSD) which warranted further consideration." However, in July 2008 a VA psychiatrist diagnosed the Veteran with Anxiety Disorder NOS and Partner Relational Problem. In December 2008, a VA clinician diagnosed the Veteran with Anxiety State. VA provided the Veteran with an examination for PTSD in August 2010. The examiner, a psychologist, noted that the Veteran's report of experiencing intense fear and feeling that his life was in danger in Vietnam "probably qualifies" as a stressor. The examiner found that the Veteran "has had a few PTSD symptoms since his return from Vietnam. He had more symptoms shortly after his Vietnam experience. His symptoms decreased over the years and there has been some mild increase in symptoms since his semi-retirement and then the complete retirement." The examiner noted that the Veteran reported benefitting from participating in the VA PTSD symptom management group, and planned to attend the second part of that group. The examiner found that the Veteran has some irritability and mild anxiety symptoms, but concluded that there was no Axis I diagnosis. The Board finds that a remand is required for two reasons. First, in order to qualify as adequate, a medical examiner's opinion must consider the Veteran's medical records and discuss his medical history. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, although the Veteran specifically informed the August 2010 examiner of his plans to continue attending a VA PTSD symptom management group, no VA mental health treatment records after August 2010 are available in the claims file or electronically. Therefore, a remand is required in order to obtain those VA records and provide the Veteran with a new examination. Second, a remand is required in order for the new VA examiner to comment on the Veteran's mental health diagnoses from VA clinicians-particularly the diagnosis of Anxiety State provided in December 2008, during the pendency of the claim. On remand, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claim. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his psychiatric disabilities that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements of the nature and onset of his psychiatric symptoms from himself as well as from other individuals who have first-hand knowledge of such symptoms, to include whether the onset of the symptoms was during service and his psychiatric symptoms since that time. He should be provided an appropriate amount of time to submit this lay evidence. 3. After associating all outstanding records regarding the Veteran's psychiatric disorder(s) with the claims folder, afford the Veteran a VA psychiatric examination. The examiner must identify all psychiatric disabilities found to be present. Thereafter, 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, and if a psychotic disorder is diagnosed, whether it developed within one year of his discharge. In responding to this question, the examiner should consider the statements in the record from the Veteran and his wife. The examiner should also comment on the December 2008 VA clinician's finding of Anxiety State, and clarify whether this represents a diagnosis; if so, the examiner should opine as to whether it is at least as likely as not that the Anxiety State is related to or had its onset in service. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ 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).