Citation Nr: 1327585 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-25 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (hereinafter "PTSD"), dysthymic disorder with anxiety and depression, adjustment disorder, and mood disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970, and from May 1975 to October 1975. This matter initially arose from a December 2006 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in St. Petersburg, Florida. Jurisdiction over the case was then transferred to the Atlanta, Georgia RO. This matter has been before the Board of Veterans' Appeals (hereinafter "Board") in September 2012 when the Board denied the claim for service connection for PTSD and remanded the claim for service connection for bilateral hearing loss. The claim for service connection for PTSD was then the subject of a March 2013 Joint Motion for Partial Remand (hereinafter "JMPR") and Order of the United States Court of Appeals for Veterans Claims (hereinafter "Court"), for consideration of the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The case has been returned to the Board following the Court Order. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a claim should be construed based on the reasonable expectations of a non-expert, self-represented claimant, and the evidence developed during the claims process. In short, the essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). In the Veteran's case, the clinical record reflects diagnoses of various mental health disorders. Hence, the Board has accordingly characterized the psychiatric disorder issue on appeal to encompass consideration of alternative psychiatric diagnoses. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The clinical record shows that the Veteran has on numerous occasions been diagnosed with dysthymic disorder with anxiety and depression, adjustment disorder, and mood disorder. In April 2006, the Veteran's treatment records show that he was diagnosed with coping-adjustment disorder with anxiety and depression. The physician noted that the Veteran's anxiety was "somewhat increased due to memory of past traumatic accident while field training." In July 2006, the same physician indicated that the Veteran had symptoms of mild psychomotor retardation, constricted affect, dysphoric mood and empty feelings, sadness, recurrent nightmares related to service, feelings of worthlessness and fleeting thoughts of suicide. The physician observed that the Veteran's PTSD screen was positive and he was diagnosed with coping dysthymic disorder. The Board notes that there is no medical opinion of record that addresses a relationship between the Veteran's diagnosed PTSD, dysthymic disorder with anxiety and depression, adjustment disorder, and mood disorder and his military service. The Court has held that the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that the Veteran must be scheduled for a VA examination and opinion to determine the etiology of any of any current psychiatric disorder to include PTSD, dysthymic disorder with anxiety and depression, adjustment disorder, and mood disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). Also, the record indicates that the Veteran receives ongoing treatment by VA. The electronic Virtual VA records file was reviewed and did not reveal any VA treatment records pertinent to this appeal. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, VA must obtain any outstanding records. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). The record clearly shows that the Veteran is presently in receipt of disability benefits from the Social Security Administration (hereinafter "SSA"). However, apart from a Notice of Decision, the record is negative for any records related to the SSA claim. The records pertaining to the SSA benefits claim may well be directly relevant to the instant appeal before VA. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In this regard, these records may show ongoing treatment for an acquired psychiatric disorder and for bilateral hearing loss. Consequently, the case must be remanded to acquire the SSA administrative decision on the claim for benefits from that agency and supporting medical records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Finally, the Board notes that in July 2013 the Veteran submitted a "90-Day Letter Response Form" in which he indicated that he wished for his case to be remanded back to the Agency of Original Jurisdiction (hereinafter "AOJ") for consideration of newly submitted evidence in the form of VA treatment records. The Board finds that this must also be accomplished on remand before the claims for service connection for an acquired psychiatric disorder and for bilateral hearing loss may be adjudicated. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must also take appropriate steps to contact the Veteran in order to obtain copies of all outstanding VA and/or non-VA treatment records referable to his acquired psychiatric disorder and bilateral hearing loss. The RO/AMC must then associate all documents received with the Veteran's claims file. If the records are not available, the RO/AMC must document attempts to obtain them in a memorandum and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. The RO/AMC must also take appropriate action to obtain copies of the SSA administrative decision(s) on a claim for benefits with that agency, along with all medical records underlying that determination. The RO/AMC must then associate all documents received with the Veteran's claims file. If the records are not available, the RO/AMC must document attempts to obtain them in a memorandum and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. After completion of the above development, the RO/AMC must arrange for a VA examination with an appropriate mental health clinician. The purpose of the examination is to delineate all acquired psychiatric diagnoses identified in the clinical and lay record to account for the entirety of the Veteran's psychiatric symptomatology, and to determine the likely etiology of any acquired psychiatric disorder diagnosed, to specifically include PTSD, dysthymic disorder with anxiety and depression, adjustment disorder, and mood disorder. A copy of this remand and all relevant in-service and post-service treatment records, written statements, and transcript of oral testimony, must be made available to the examiner, to include any pertinent records in Virtual VA. The examiner is asked to confirm whether paper and/or electronic records were available for review. After a thorough review of the clinical and lay record, and interview of the Veteran and mental health examination, the examiner must: (a) List all psychiatric diagnoses applicable to the Veteran. The examiner must determine whether the Veteran's psychiatric symptoms meet the criteria set forth for PTSD in the DSM-IV. Specific responses must be provided for each of the DSM-IV criteria. If a diagnosis of PTSD is appropriate, the examiner should state which, if any, of the Veteran's reported in-service stressors are sufficient to produce PTSD. (b) Provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran experiences an acquired psychiatric disorder, to include dysthymic disorder with anxiety and depression, adjustment disorder, and/or mood disorder, are related to his active military service. (c) Provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran has PTSD that is based on a corroborated in-service stressor. The examiner should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is requested to provide a complete rationale for her or her opinion, based on her or her clinical experience, medical expertise, and established medical principles. If the examiner is unable to render the requested opinion without resort to pure speculation, she or she must so state; however, a complete rationale for such a finding must be provided. 4. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested action, and any additional notification and/or development warranted by the record, the RO/AMC should readjudicate the remanded claims for service connection for an acquired psychiatric disorder and for bilateral hearing loss. If any benefit sought on appeal remains denied, the RO/AMC should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond before the case is returned to the Board for further appellate action. 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). _________________________________________________ K. PARAKKAL 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).