Citation Nr: 1328293 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-09 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder and depression. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his February 2010 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. A hearing was scheduled for May 2012, and the Veteran requested that it be rescheduled. The hearing was rescheduled for July 2012, and the Veteran did not attend. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d),(e) (2012). When the record associates different diagnoses with the same symptoms, the nature of the Veteran's disorder is a question of fact for the Board and, once determined, the Board must address whether the Veteran's symptoms, regardless of diagnosis, are related to service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). While the Veteran has claimed entitlement to service connection for PTSD, his VA treatment notes reflect treatment for depression. Therefore, the Board has broadened the issue to include all acquired psychiatric disabilities as reflected on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's VA treatment records indicate that he is in receipt of Supplemental Security Income (SSI). A June 2009 inquiry made of the Social Security Administration (SSA) database revealed that the Veteran had been receiving SSI payments since at least July 2006. While the Veteran has multiple disabilities, there may be medical records and SSA evaluations associated with the Veteran's claim for SSI that are relevant to the current claim. When VA has notice of the existence of certain records and their potential relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). Thus, the appeal is remanded so that records from SSA may be obtained. Additionally, a December 2007 psychological assessment specifically states that the Veteran had begun seeking VA mental health treatment in August 2006 at the Dallas VA Medical Center (VAMC), but the earliest VA treatment note of record is dated in November 2007. Additionally, the most recent VA treatment note is dated in September 2011. Therefore, the Board finds that a remand is also necessary so that outstanding VA treatment records may be obtained. Finally, the Board observes that the Veteran has not been provided a VA examination to assess the nature and etiology of his acquired psychiatric disability. As current treatment evidence reflects a diagnosed disability and the Veteran has offered evidence, in particular testimony at the December 2010 DRO hearing, that his symptoms began in service. Therefore, the Board finds that the criteria for scheduling a VA examination have been met. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request all records from the Social Security Administration related to the Veteran's claim for benefits including medical records and copies of all adjudications. All requests and responses, positive and negative, must be documented in the claims file. 2. Obtain VA treatment records from the Dallas VAMC and any associated outpatient clinics dated prior to November 2007 and from September 2011 to the present. All requests and responses, positive and negative, must be documented in the claims file. 3. Schedule the Veteran for a VA examination to assess the nature and etiology of his acquired psychiatric disability. The claims file must be made available to the examiner in conjunction with the examination. Upon review of the record and examination of the Veteran, the examiner should respond to the following: a) Identify all diagnoses appropriate to the Veteran's psychiatric symptoms. b) Is it at least as likely as not (50 percent of greater probability) that any diagnosed acquired psychiatric disability is caused by service or is otherwise related to the Veteran's active military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 4. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).