Citation Nr: 1327944 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-20 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from August 1973 to March 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in pertinent part, denied the Veteran's claim for a "mental condition (stress)." In September 2008, the Veteran filed a Notice of Disagreement (NOD) with the RO's July 2008 decision and, in April 2009, the RO issued a Statement of the Case (SOC). The Veteran subsequently filed a timely Substantive Appeal to the Board (VA Form-9) in April 2009. The Veteran did not request a hearing before the Board. In April 2009, prior to the issuance of the April 2009 SOC regarding the claim of service connection for "mental condition (stress)," the Veteran's representative filed a claim for service connection for PTSD. In a September 2009 rating decision, the RO denied service connection for PTSD. However, the RO did not issue a legally sufficient notice letter regarding the substantiation of a claim for PTSD prior to the issuance of the September 2009 rating decision. In November 2009, the RO issued the proper notice letter to the Veteran and, in a November 2009 rating decision, again denied the Veteran's claim for service connection for PTSD. In April 2010, even though he had not yet filed an NOD regarding that particular issue, the Veteran filed a completed VA Form-9 regarding the issue of service connection for PTSD. In an April 2010 statement, the Veteran's representative stated that the Veteran's claim for PTSD should have been incorporated into his claim for service connection for a "mental condition (stress)," in accordance with the United States Court of Appeals for Veterans Claims' (Court's) ruling in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In June 2011, the RO issued an SOC, again denying service connection for PTSD. The record contains no notation indicating that the Veteran filed a subsequent VA Form-9 after the issuance of the June 2011 SOC. In Clemons, the Court determined that a claim for service connection is not limited only to whatever disorder the Veteran lists in his original claim for benefits. Instead, VA must consider a claim to be one of service connection any disability that may reasonably be encompassed by several factors including: the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or VA obtains in support of the claim. See id. The record indicates that the Veteran, in his initial February 2008 claim for benefits, sought service connection a psychiatric disorder characterized by symptomatology involving stress, similar to PTSD. Therefore, even though the Veteran did not file a timely VA Form-9 after the issuance of the June 2011 SOC, the Board finds that the Veteran's properly appealed claim for service connection for a "mental condition (stress)" included a claim for service connection for PTSD. See id. Therefore, the Board has characterized the claim before it as one of service connection for a psychiatric disorder, to include PTSD. 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 record is not ready for appellate review of the issue on appeal. The following further development is required. The Veteran's service personnel records indicate that he was tried by a special court-martial on January 31, 1975. In support of his claim, the Veteran submitted a single page from an apparent summarized record of trial of the court-martial proceedings. The record, to include the service personnel records already procured by VA, does not contain any additional pages of this transcript. Therefore, VA should seek to obtain the complete summarized record of trial, to include a complete copy of the transcript. The most recent VA outpatient treatment records included in the claims file are dated in April 2008. In an August 2008 letter, a VA examiner indicated that she currently was treating the Veteran for PTSD. In a May 2009 VA psychiatric examination report, a VA examiner noted that the author of the August 2008 letter was providing psychiatric treatment for the Veteran at a VA facility in January 2009. Therefore, a request for additional records must be made. The May 2009 VA psychiatric examination report currently of record is based, in part, on the May 2009 VA examiner's review of the evidence then of record. After the procural of evidence required by this remand, the claims file should be returned to the same examiner who wrote the May 2009 VA psychiatric examination report. The May 2009 VA examiner should then be asked to write an opinion regarding the nature and etiology of the Veteran's claimed psychiatric disorder based on the evidence currently of record. If the May 2009 VA examiner is not available, an additional VA psychiatric examination to determine the nature and etiology of the Veteran's claimed psychiatric disorder should be provided. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of the records regarding the Veteran's January 31, 1975 special court-martial hearing, especially the complete transcript of those proceedings, by contacting the National Personnel Records Center (NPRC), the Office of the Judge Advocate General for the Navy, and the Veteran. In requesting these records, follow the current procedures which require that efforts to obtain records in the custody of a Federal department or agency continue until either the records are received or notification is provided that further efforts to obtain them would be futile. All records or responses received should be associated with the claims folder. The Veteran also must be appropriately notified if unable to obtain these records. THE VETERAN IS ADVISED THAT ALTHOUGH HE SUBMITTED THE ONE PAGE EXTRACT FROM THE SUMMARIZED RECORD OF TRIAL, HE MUST SUBMIT THE ENTIRETY OF THE RECORD OR A COPY OF IT FOR INCLUSION IN THE RECORD. 2. Make arrangements to obtain the Veteran's VA treatment records, dated since April 2008. 3. Review the claims file and ensure the above development action has been conducted and completed. Then, return the claims file to the same examiner who wrote the May 2009 VA psychiatric examination report. The May 2009 VA examiner should then be asked to write an opinion regarding the nature and etiology of the Veteran's claimed psychiatric disorder based on the evidence currently of record. If the May 2009 VA examiner is not available, schedule the Veteran for a VA psychiatric examination to be performed by a VA psychiatrist or psychologist, or a psychologist or psychiatrist with whom VA has contracted. a. The entire claims file and a copy of this remand must be made available to the examiner. The opinion or, if the May 2009 VA examiner is not available, VA psychiatric examination report, must reflect review of pertinent material in the claims folder. Although the examiner has an independent responsibility to review the claims file for pertinent evidence, his or her attention is directed to the following: i. The January 1975 service treatment record, diagnosing the Veteran as having a severe schizoid personality disorder, existing prior to entry into service; ii. The January 1975 court-martial record, including the stipulated testimony of a private examiner, diagnosing the Veteran as having hyper-kinetic syndrome; iii. The VA treatment records, indicating treatment for depression secondary to medical illness and panic attacks; iv. The August 2008 letter from a VA examiner, diagnosing the Veteran as having PTSD due to incidents in service; v. The May 2009 VA psychiatric examination report; vi. The Veteran's lay statements, to include his stressor reports; vii. The psychiatric evaluation included with the Veteran's Social Security Administration records; and viii. Any records procured as a result of this remand. b. After reviewing the claims file and, if the May 2009 VA examiner is unavailable, conducting an interview with, and examination of, the Veteran, the examiner must state whether he has any current (or at any time since filing his claim for service connection) mental disorder that likely began during service or is the direct result of in-service experiences. The examiner must include a specific finding as to whether the Veteran has PTSD. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. d. If PTSD is diagnosed, the examiner must opine whether the Veteran's symptoms are related to the claimed stressors, to especially include the single corroborated stressor involving the shooting of the Veteran's mother by his father during the Veteran's service. e. If any other psychiatric disability is diagnosed, the examiner must specifically opine whether the disorder began during service, is a result of service, or otherwise underwent a chronic increase in severity beyond natural progression during service, or is otherwise related to any incident of service. f. The examiner should opine as to whether it is at least as likely as not that a personality disorder, such as schizoid personality disorder or hyper-kinetic syndrome, was aggravated during service by a "superimposed" disease or injury. g. All clinical findings must be reported in detail and correlated to a specific diagnosis and the report prepared must be typed. h. A complete explanation must be provided for any findings rendered and any medical treatises referenced by the examiner must be cited. If the examiner is unable to render an opinion without resort to speculation, he or she must explain why and so state. 3. After the above has been completed, review the claims file and ensure that all of the development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinion requested, it must be returned to the examiner or clinician for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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). _________________________________________________ VITO A. CLEMENTI 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).