Citation Nr: 1326312 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-14 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from May 2000 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Hartford Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. The Board notes that the psychiatric claim on appeal has been developed as a claim for PTSD. The Court of Appeals for Veterans Claims 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim has been recharacterized to include any psychiatric disorder. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. The Board notes that, in a June 2011 brief, the Veteran's attorney included the issue of entitlement to a total disability rating based on individual unemployability (TDIU) as a claim on appeal. However, there is no evidence that the Veteran appealed the July 2010 rating decision in which the RO denied entitlement to a TDIU. Therefore, that issue is not on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board's review of the claims file reveals that further development is needed prior to adjudication of the claim for service connection for an acquired psychiatric disorder, to include PTSD. A review of the record also shows that there may be additional private treatment records that have not been associated with the claims file. Specifically, a March 2009 VA treatment note references treatment from a private primary care physician who prescribed psychiatric medications for symptoms of anxiety and sleep disturbance in December 2008. In an April 2009 VA treatment note, the Veteran reported that her private primary care physician had previously diagnosed "borderline bipolar disorder." However, it does not appear that any action has been taken to obtain these records. The record also suggests that there may be outstanding VA treatment records pertinent to the Veteran's claim. In May 2011, the Veteran's attorney submitted copies of VA treatment records dated from April 2010 to June 2010. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2). Therefore, ongoing VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell, 2 Vet. App. at 611. Additionally, the Board finds that a VA examination and medical opinion is necessary to resolve the claim remaining on appeal. A VA medical opinion is needed to determine whether the Veteran's current psychiatric disorder may be related to service. The Veteran claims that she has PTSD related to witnessing traumatic sights and smells from dead bodies and providing medical aid to sick people during her service aboard the USNS Comfort (T-AH 20) in the aftermath of Hurricane Katrina from September 2005 to November 2005. The Veteran was previously afforded a VA examination in June 2010. The VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD or an anxiety disorder. Rather, he diagnosed an adjustment disorder with anxiety and opined that it was not related to military service. By contrast, a review of the associated VA treatment records shows that the Veteran has been diagnosed with an anxiety disorder (April 2009), major depressive disorder (June 2009), a panic disorder (June 2009), and PTSD (April 2010). As there appear to be conflicting medical opinions as to whether the Veteran has PTSD, the Veteran should be afforded a new VA examination and opinion that takes into account the Veteran's updated medical history and medical records. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should specifically request that the Veteran provide a signed authorization to enable it to obtain all outstanding pertinent medical treatment records from the private primary care physician referenced in March 2009 and April 2009 VA treatment notes in the claims file. A specific request should also be made for any outstanding VA medical records. If any records are not available, the Veteran should be notified. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to the Veteran's military service, including the documented symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors. The Board notes that, in April 2010, Joint Services Records Research Center (JSRRC) verified the Veteran's claimed stressors as her reports of the events that took place were "consistent with the circumstances, conditions, and/or hardships of such service." The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. In making this determination, the examiner should discuss the diagnoses documented in the claims file, including the diagnosis rendered in the April 2010 VA treatment report. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the development requested has been completed, the RO should review the examination reports to ensure that they are in compliance with the directives of this REMAND. If any report is deficient in any manner, the RO should implement corrective procedures. 4. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her attorney should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of the amended version of 38 C.F.R. § 3.304, as well as the provisions of 38 C.F.R. § 3.310. 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). _________________________________________________ CHERYL L. MASON 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).