Citation Nr: 1326302 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-23 567 ) 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. ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran (appellant) had active service in the United States Army from May 2005 to May 2009, including service in Iraq from August 2007 to November 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for obsessive compulsive disorder. 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 which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). The evidence of record contains references to obsessive-compulsive disorder, depression and anxiety. In compliance with the Court's holding in Clemons, the Board has characterized the issue as reflected on the first page, above. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain any evidence pertinent to the claim that is not already included in the paper claims files. 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 A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred; this case is remanded to the AMC/RO for action as described below. Review of the appellant's service medical treatment records reveals that no records dated after February 2007, except for one CHAMPUS document dated in January 2009, are included in the evidence of record - including any records associated with her deployment to Iraq or her service separation. The January 2009 CHAMPUS document indicates that the appellant was a participant in the RESPECT-Mil (Re-Engineering Systems for the Primary Care Treatment of Depression and PTSD in the Military) program at the Army Hospital Center in Vilseck, Germany; RESPECT-Mil is a program that provides care to soldiers with symptoms of depression and PTSD in the primary care setting. No other in-service psychiatric records have been included in the evidence of record. Service medical treatment records are deemed to be constructively of record in proceedings before the Board and should be obtained, if available, prior to further review of the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, a December 2009 VA outpatient treatment note states that the appellant had a private health care provider and none of these records have been associated with the claims file. Therefore, VA is on notice of records that may be supportive of the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). On remand, the originating agency should undertake appropriate development to obtain all outstanding, pertinent treatment records, to include private and VA treatment records. While the RO did arrange for an examination of the appellant by a psychologist, that examiner did not render any opinion as to the etiology of the Axis I disorder he diagnosed. Thus the findings were inadequate (also in part because not all pertinent records were included in the claims file), and would not withstand judicial review. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995) (stating if medical opinion of record was based on incomplete records, it is of limited probative value) and Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran's claims folder). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Furthermore, VA has a duty to return for clarification unclear or insufficient examination reports. In particular, such clarification should be obtained where the missing evidence bears greatly on the probative value of the examination report. Thus, this case must be remanded so that all pertinent records can be obtained and so an adequate medical opinion can be generated. See Savage v. Shinseki, 24 Vet. App. 259 (2011). These considerations require the gathering of military and medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Ensure that all notification and development action required by statutes, regulations, and any applicable legal precedents has been completed. 2. Search, at the National Personnel Records Center, or other appropriate sources, for the rest of the Veteran's Army service medical treatment records. In particular, the Veteran's psychiatric records should be obtained, including records from the RESPECT-Mil program at the Army Hospital Center in Vilseck, Germany. If any location contacted suggests other sources, those sources should be encompassed by the search. 3. Contact the Veteran to obtain the names and addresses of all VA, private or other government psychiatric care providers and treatment centers where she has been treated for any psychiatric condition since service. After securing the necessary release(s), obtain those records that have not been previously secured. In particular, all treatment records from Dr. Catherine Mathes must be obtained. 4. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The Veteran must also be informed of the negative results and be given opportunity to secure the records. 5. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for a VA psychiatric evaluation to determine the nature, onset date and etiology of any current psychiatric or psychological pathology and whether it is linked to the Veteran's active service. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA or CAPRI), including a copy of this remand, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI must be printed and associated with the paper claims file so they can be available to the examiner for review. The examining psychiatrist, after examination of the Veteran and review of her entire medical history, to include in-service and post-service medical reports, must provide an opinion as to the diagnosis and etiology of any current psychiatric disorder(s), and reconcile all previous psychiatric diagnoses documented in the records. The psychiatrist must also offer an opinion as to the onset date of the Veteran's psychiatric condition(s), if any. If the examiner finds that a psychiatric disorder is causally related to service, to the extent possible, the psychiatrist must indicate the historical degree of impairment due to any psychiatric disorder found to be related to service, as opposed to that due to other causes, if any. Specifically, the examining psychiatrist must address the questions of: a. Whether the Veteran's current psychiatric pathology is causally or etiologically related to her period of military service or to some other cause or causes. (It is not necessary that the exact causes - other than apparent relationship to some incident of service - be delineated.); b. Whether the Veteran's current psychiatric pathology is related to symptoms or signs she may have manifested in service (May 2005 to May 2009); and c. Whether the Veteran's current psychiatric pathology is related to symptoms and signs that may have occurred within one year after her service separation in May 2009. In assessing the relative likelihood as to origin and etiology of the conditions specified above, the examiner is to apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's psychiatric pathology. See Jones v. Shinseki, 23 Vet. App. 383 (2010). 7. After completing any additional notification and/or development action deemed warranted by the record, review the record again, including any newly acquired evidence, and re-adjudicate the issue on appeal. Ensure that all theories of service connection are considered. 8. If the benefit sought on appeal remains denied, the Veteran and her representative, if any, must be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).