Citation Nr: 1324783 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 11-01 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970, including service in the Republic of Vietnam, and his decorations include the Army Commendation medal with "V" device. His awards and commendations are prima facie evidence he engaged in combat. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for PTSD. Based on the evidence of record and Clemons v. Shinseki, 23 Vet. App. 1 (2009), the PTSD claim has been recharacterized as reflected on the title page. A Travel Board hearing was held in Pittsburgh, Pennsylvania, before the undersigned Veterans Law Judge (VLJ) in March 2011. A copy of the transcript of that hearing is of record. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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 on his part. REMAND The Veteran initially filed a claim for service connection for PTSD in December 2008. Review of the record reflects that the service treatment records (STRs) are negative for report of, treatment for, or diagnosis of a psychiatric disorder. Post service VA records dated from 2001 show treatment for various conditions, to include service-connected diabetes mellitus. These records document treatment for psychiatric complaints from 2008. At that time, the Veteran reported nightmares. He was interested in finding a veteran's support group to attend. When examined by VA in December 2008, the Veteran reported feelings of depression and anxiety. He had thoughts of suicide (poisoning himself) but did not actually plan on carrying it out. He denied feelings of hopelessness and said that he had many reasons for living, particularly his grandchildren. On mental status exam, the Veteran showed good attention and concentration. His memory and intellect were grossly intact and were estimate to be of at least average capacity. His speech was fluent, slightly over productive, and of normal rate and volume with normal latency of response. His thought process was clear, coherent, and goal-directed without evidence of formal thought disorder or psychosis. He said that he was in a "pretty good" mood. His affect was euthymic and appropriate. He denied auditory or visual hallucinations, and there was no evidence of paranoid thought content. His judgment and insight appeared to be grossly intact, but there were some concerns about his judgment in discussing suicide methods. The diagnostic impressions included adjustment disorder with depressed mood. Subsequently dated treatment records include an April 2009 VA record. At that time, the diagnosis was again adjustment disorder with depressed mood. Also when seen by a counselor at the Vet Center in Wheeling, West Virginia, in March 2011, the psychiatric diagnosis continued as adjustment disorder with depressed mood. Anxiety was also noted. In statements of record (e.g. VA FORM 646 in January 2011) and in his testimony at the hearing in March 2011, the Veteran has argued that the December 2008 VA examination results are inadequate to determine whether he has PTSD of service origin. He asserts that the examination was primarily a questionnaire which only took about 30 minutes to fill out. There was no one-on-one with a physician or psychiatrist. The Board notes that this was not an examination for compensation purposes. In light of the foregoing, the Board finds the evidence of record is insufficient to fully and fairly evaluate the Veteran's appeal as it is unclear if the Veteran meets the criteria for a diagnosis of PTSD, or any other acquired psychiatric disorder, at any time during the appeal period. Thus, the Board must remand the appeal to supplement the medical evidence of record with another VA examination. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (holding that the Board has a duty, under 38 C.F.R. § 19.9(a), to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision."). Finally, the record suggests that the Veteran receives regular psychiatric treatment; however, relevant VA treatment records, dated since March 2011 have not been associated with the paper or electronic claims folder. VA is obligated to attempt to obtain and consider these records in adjudicating this appeal. 38 U.S.C.A. § 5103A(c)(3) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2) (2012). For this reason as well, the Board has no discretion and must remand this appeal to attempt to obtain any outstanding records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's psychiatric disabilities dated since March 2011. Any negative response(s) must be in writing and associated with the claims folder. 2. Upon completion of the aforementioned development, schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset and etiology of any acquired psychiatric disorder. The claims file must be made available to, and reviewed by, the examiner, with such review noted in the provided examination report. The examiner should record the full history of the disability, including the Veteran's account of symptomatology. Then, the examiner is to address the following: (A) Identify any acquired psychiatric disorder, including PTSD, depression, anxiety, etc. (B) If the criteria for a diagnosis of PTSD are met, provide an opinion as to whether (i) the Veteran's claimed stressor(s) is(are) adequate to support a diagnosis of PTSD; and (ii) his psychiatric symptoms are related to a claimed stressor(s), specifically considering his conceded combat related stressors. (C) As to all diagnosed psychiatric conditions other than PTSD, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the condition (i) had its onset in service or, as to a psychosis, within one year of separation; and (ii) is related to the Veteran's period of military service. The examination report must reflect the examiner's consideration and analysis of both the medical and lay evidence of record, to include (I) the Veteran's account of inservice symptomatology; (II) the December 2008 VA PTSD assessment report; (III) and any other medical evidence deemed pertinent. All provided opinions should be supported by a clearly stated rationale. All necessary tests and/or studies should be conducted and reported in detail in the provided examination report. All findings and conclusions should be set forth in a legible report. Note: The Veteran is advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 3. Then, readjudicate the matter on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & supp. 2012), 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).