Citation Nr: 1327573 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-41 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to June 1989. This appeal arises before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). The RO recharacterized the issue as one for whether new and material evidence had been submitted to reopen the claim for service connection for depression, also claimed as PTSD, and reopened the claim. However, the issue of whether new and material evidence has been submitted to reopen the claim is one that had to be first addressed by the Board, notwithstanding a favorable decision rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Additionally, the record reflected that the Veteran had been variously diagnosed with bipolar disorder, depression, schizoaffective disorder, PTSD, etc. The Board acknowledged 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). The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) in April 2011. A transcript of that hearing is associated with the claims file. In December 2011, the claim for whether new and material evidence had been submitted to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, was reopened by the Board and the claim for an acquired psychiatric disorder to include PTSD was then denied. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). While this case was pending before the Court, a Joint Motion for Partial Remand was filed in October 2010. The Joint Motion indicated that the Board's decision should not be vacated to the extent that the Board found that new and material evidence had been submitted to reopen the claim. See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007) (The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority). In an Order, also dated in October 2010, the Court granted the Joint Motion, vacated the Board's December 2011 decision only to the extent that it denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and remanded the case for compliance with the Joint Motion. 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 The Veteran maintains that service connection is warranted for an acquired psychiatric disorder, to include PTSD. First, she alleges that her psychiatric disorder that pre-existed service was aggravated by service. Second, she claims that she acquired a psychiatric disorder in service due to her in-service injuries that resulted in her administrative discharge. Third, she asserts that she has PTSD as a result of an in-service motor vehicle accident in which she witnessed the injury and/or death of an infant in a car seat. And fourth, she contends her psychiatric disorder is aggravated by her service-connected disabilities. The parties to the Joint Remand indicated that they did not dispute the Board's finding that the record established that there was clear and unmistakable evidence that the Veteran had a pre-existing psychiatric disability but the Board failed to address the Veteran's lay statements of record in its assessment as to whether there was clear and unmistakable evidence that the Veteran's pre-existing psychiatric disorder was not aggravated during her period of service. Specifically, the Board did not address the credibility of the Veteran's lay statements that she received counseling with a psychiatrist during service for depression or that her depression was related to her in-service injuries that resulted in her administrative discharge. An attempt to obtain any available psychiatric (mental hygiene) records from service that may not have been associated with her service treatment records must be made. She has also indicated that she received psychiatric treatment from a VA facility within two months of her discharge from service, and her Social Security Disability records indicate that she reported being hospitalized in 1989 for a psychiatric disability in Oklahoma. An attempt to obtain this medical evidence must also be made. With regard to the claim that her psychiatric disorder was proximately due to or aggravated by her service-connected disabilities, a December 2008 statement from the Veteran's private physician, indicated in pertinent part, that the Veteran entered service as a highly motivated soldier and based on her in-service injuries, she was unable to complete her assigned duty and was given an administrative discharge. This statement triggers VA's duty to assist and requires that the Veteran be provided a VA examination addressing the claim on the basis of aggravation. The Board observes that service connection may be established for disability which is proximately due to or the result of a service-connected disability. Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (2012). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a claim for secondary service connection for a psychiatric disorder, including on the basis of aggravation, pursuant to 38 C.F.R. § 3.310 (2012). 2. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for her acquired psychiatric disorder, to include PTSD, since 1989. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. Duplicate records should not be placed in the file. 3. Obtain all VA inpatient and outpatient treatment records from1989 to the present for all of the acquired psychiatric disorders, to include PTSD, including the reported treatment at a VA facility in Oklahoma in 1989. Duplicate records should not be placed in the file. 4. The RO/AMC should also seek any and all outstanding in-service mental health/hygiene records indicative of counseling received by the Veteran in service in 1989 and any military police reports documenting the motor vehicle accident and resulting injuries in service. 5. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 6. After the above has been accomplished, the Veteran should be afforded a VA mental disorders examination. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following the examination, the examiner should list all currently manifested psychiatric disabilities. Then, the examiner should express an opinion as to whether it is at least as likely as not that any currently manifested psychiatric disability is aggravated by her service-connected wrist and finger disabilities. If so, the examiner must address the baseline level of disability due to psychiatric impairment before it was aggravated by the Veteran's wrist and finger disabilities. S/he should support the opinion with appropriate reasons and bases. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 7. When the above development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of all of the additional evidence. If the benefit sought on appeal is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board. 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). _________________________________________________ SUSAN J. JANEC Acting 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).