Citation Nr: 1327795 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-00 257A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including PTSD. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2013, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. Case law mandates that a claim for a psychiatric disability 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board has recharacterized the issues to the broader issue of entitlement of service connection for a psychiatric disability, as is reflected on the cover page. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that the record includes copies of VA medical records and the Board hearing transcript. In the October 2012 supplemental statement of the case, the RO indicated that it had reviewed the VA medical records associated with the Virtual VA claims file. After the issuance of the October 2012 supplemental statement of the case, the Veteran submitted additional VA medical records and lay statements. However, the Veteran submitted those records with a March 2013 waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). As such, the Board can go forward with its review of such evidence. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he currently has PTSD due to his service in the Persian Gulf. Specifically, the Veteran has reported incidents that included missile and chemical weapon threats, as well as having to perform perimeter watch (August 2008 stressor statement, March 2010 lay statement and April 2013 Board hearing testimony). The Veteran also contends that following his March 1992 separation from service he had chronic psychiatric symptoms, which he self-medicated with his alcohol use. A March 1992 mental health evaluation documents that the Veteran received a diagnosis of marital problems, chronic, severe. Post-service VA medical records generally document treatment for numerous psychiatric disorders, including: alcohol abuse and anger management/impulse control problems (October 24, 1996), PTSD/anxiety (September 30, 2005), anxiety and depression (November 9, 2011), depression with provisional PTSD (May 14, 2012), anxiety disorder not otherwise specified (subthreshold PTSD) and cognitive complaints or concentration and memory problems (January 7, 2013) and PTSD (February 2013). A December 12, 2008 Vet Center record also indicated that the Veteran "most likely has Post Traumatic Stress Disorder". In September 2012, the Veteran underwent a VA examination for PTSD. The VA examiner found that the Veteran did not meet diagnostic criteria for a PTSD diagnosis. However, the September 2012 VA examiner did not clearly address whether the Veteran currently has any other psychiatric disorders (specifically including those noted above by other medical providers) and whether such disorders are etiologically related to the Veteran's service. The Board further notes that since the September 2012 VA examination, the Veteran has been assigned a diagnosis of PTSD during VA treatment. Once VA undertakes the effort to provide an examination for 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). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A remand is necessary in order to obtain a new VA examination to determine whether the Veteran currently has PTSD or another acquired psychiatric disorder(s) that is etiologically related to his service. The Board also notes that the Veteran receives VA treatment through the Houston VA Medical Center. However, the AOJ has not associated VA medical records from June 2008 to November 2010 and from October 2012 to the present with the claims file. During his Board hearing, the Veteran also indicated that he was receiving psychiatric treatment from a new VA medical provider as recently as March or April of 2013. These missing VA medical records should be obtained for consideration in the appeal. Similarly, in a September 1999 VA medical record, the Veteran reported undergoing treatment from the Vet Center. A December 2008 letter from the Vet Center summarized the Veteran's treatment with it thus far. However, more recent Vet Center records may be available. As this matter is being remanded, the AOJ should also attempt to obtain any more recent Vet Center records with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain VA treatment records from the Houston VA medical center dated from June 2008 to November 2010 and from October 2012 to the present. The AOJ should also obtain any Vet Center records from December 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Upon completion of the above, the AOJ should schedule the Veteran for an appropriate psychiatric examination to identify the precise nature of any and all psychiatric disorders that the Veteran may have, and to determine whether any diagnosed disorder(s) is/are related to service. Based on examination findings, as well as a review of the paper and virtual claims files - including VA and Vet Center treatment records, private medical records, the Veteran's and other lay statements of record (including the April 2013 Board hearing transcript) and a complete copy of this REMAND, the examiner is requested to render opinions as to the following: a) Does the Veteran currently have any psychiatric disorder, and if so what psychiatric disorder(s) does he have under DSM-IV standards? b) If a diagnosis of PTSD is made, was that PTSD manifested due to a claimed in-service incident? The examiner should specifically consider the Veteran's accounts of serving in the Persian Gulf under fear of missile and chemical attack, as well as having to perform perimeter patrol. The examiner should also comment on whether the Veteran's response to his reported stressors in the Persian Gulf involved a state of fear, helplessness or horror. c) If the examiner finds that the Veteran does not have PTSD, but rather has a different psychiatric disorder, or that the Veteran has another psychiatric disorder in addition to his PTSD, is it at least as likely as not that the Veteran's non-PTSD, psychiatric disorder(s) had its onset during service or was caused by an incident or event that occurred during service? Specifically, consider the Veteran's accounts of being under threat of missile and chemical attack, as well as having to perform perimeter patrol, as opposed to any stressful incidents that took place after service. Also, was the non-PTSD, psychiatric disorder(s) manifested within one year after the Veteran's discharge from service in March 1992? The examiner should also specifically comment on the multiple psychiatric diagnoses the Veteran has received from his various medical providers (documented in the claims file) and whether the Veteran currently meets the DSM-IV criteria for such diagnoses and if it is at least as likely as not that they developed due to service. For purposes of the opinion being sought, the examiner should specifically consider the following: • an opinion should be rendered assuming that the stressors occurred as stated • there are VA medical records, Vet Center records, a September 2012 VA examination report, private medical records, and multiple lay statements of record (including the April 2013 hearing transcript) pertaining to psychiatric problems over the years A complete explanation must be given for all opinions and conclusions expressed. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 3. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ B. MULLINS 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).