Citation Nr: 1326473 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-28 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder not otherwise specified, anxiety, and dysthymic disorder. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In July 2008, the Veteran submitted a claim of entitlement to service connection for PTSD. VA treatment records and private treatment records reflect multiple diagnoses, to include PTSD, depressive disorder not otherwise specified, anxiety, and dysthymic disorder. Accordingly, the Board has re-captioned the claim as seen on the title page. Id. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has an acquired psychiatric disorder as the result of stressors he experienced during his service in Vietnam. He reports that he was assigned to the 46th Combat Engineers and avers that he feared for his life when his unit was ambushed during the construction of a Bailey bridge. The Veteran also contends that he witnessed a tank hit a mine and blow up, injuring the driver and two other men. In addition, he asserts that his fire base came under mortar attack at night when the enemy attempted to keep them from building a bridge. The record does not show that a VA examination was performed in connection with the Veteran's claim. Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifested during an applicable presumptive period for which the Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the record reflects that VA physicians and private physicians have diagnosed several different acquired psychiatric disorders during the pendency of the appeal. In addition, the Board finds the Veteran's reported in-service stressors are consistent with the places, types, and circumstances of his service as a construction foreman in Vietnam. Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of any diagnosed acquired psychiatric disorder. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.159. In addition, the Board concludes that because there might be outstanding records pertinent to the Veteran's claim, a remand is necessary to obtain these records. The evidence of record indicates that the Veteran receives disability benefits from the Social Security Administration (SSA) based, in part, on "nerves." In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the United States Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). Moreover, the Court has determined that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here, and the RO should request the Veteran's SSA records. See Golz, 590 F.3d at 1321. Accordingly, the case is REMANDED for the following actions: 1. Contact the Social Security Administration and request a copy of any decision made pursuant to a claim by the Veteran for disability benefits, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's claims file. Efforts to obtain these records must continue until the RO determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the Veteran and his representative, and he must then be afforded an opportunity to respond. 2. Schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any acquired psychiatric disorder, to include all those diagnosed during the pendency of the appeal. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner is requested to review all pertinent records associated with the claims file, to include the previous diagnoses provided by VA physicians and private physicians, as well as the lay statements submitted by the Veteran describing his in-service stressors. If PTSD cannot be diagnosed, the examiner should specifically state which DSM-IV criteria are not met. For each diagnosed acquired psychiatric disorder, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder is causally or etiologically related to the Veteran's active duty service, to include his assertions that his unit was ambushed while constructing a bridge and that his fire base came under mortar attack at night. In providing the requested opinion, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report. 3. After the development requested has been completed, readjudicate the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder not otherwise specified, anxiety, and dysthymic disorder. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond before the case is returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).