Citation Nr: 1328494 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 11-09 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for abnormal leg movement disability, claimed as restless leg syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. 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 Board has accordingly characterized the mental health issue as shown on the title page. 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 At the outset, the Board notes that in Clemons, 23 Vet. App. 1, the U. S. Court of Appeals for Veterans Claims (Court) held that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4- 5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider 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 that the Secretary obtains in support of the claim." Id. at 5. In this case, the evidence shows that the Veteran has been diagnosed with psychiatric disorders to include anxiety, panic disorder, and agoraphobia. However, the Veteran has not been provided appropriate notice in response to a claim for service connection for psychiatric disability other than PTSD. On remand, such notice should be provided. The Veteran was afforded a VA examination in September 2010 in which the VA examiner repeatedly questioned his reported in-service stressors. The examiner opined that the Veteran did not meet the formal diagnostic criteria for PTSD. The Board finds that the September 2010 VA examination and opinion are inadequate for adjudication purposes as the Veteran's in-service stressors have been conceded. As such, the Veteran should be afforded a VA examination in which the examiner is instructed to consider the Veteran a reliable historian in regards to his in-service stressors, specifically his stressors in Vietnam. Moreover, the Veteran asserted in his August 2011 hearing that his restless leg syndrome was related to his psychiatric disabilities. An October 2010 VA treatment record diagnosed sleep disorder with abnormal leg movement at night; this did not appear to be a restless leg syndrome (RLS). On remand, the Board finds that the nature and etiology of the Veteran's abnormal leg movement should be determined. Finally, additional records pertinent to this claim might be available as the Veteran noted private treatment in his August 2011 hearing and latest VA treatment records are from March 2011. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should provide the Veteran with all required notice in response to the claim for service connection for psychiatric disability other than PTSD. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding medical records pertaining to post-service treatment or examination of the Veteran for any psychiatric disorders or restless leg disability, to specifically include private treatment records and VA treatment records since March 2011. 3. The Veteran should be afforded a VA examination by a psychiatrist or a psychologist to determine the nature and etiology of all acquired psychiatric disorders present during the pendency of this claim, to include PTSD. The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed. With respect to each acquired psychiatric disorder currently present or present at any time during the pendency of this claim, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service, to specifically include his conceded in-service stressors. For the purposes of the opinion, the Veteran should be presumed to be a reliable historian. With respect to any abnormal leg movement disability currently present or present at any time during the pendency of this claim, the examiner should provide an opinion as to whether such abnormal leg movement represents an actual disability as opposed to a medical finding or symptom of some other disability including a diagnosed psychiatric disorder, and it is deemed to be a separate and distinct disability, whether there is a 50 percent or better probability that such disability is etiologically related to his active service, or was caused by or worsened by any diagnosed psychiatric disabilities. The rationale for all opinions expressed must also be provided. 4. The RO or the AMC should undertake any additional development it determines to be warranted. 5. Then, the RO or the AMC should adjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ MICHAEL A. PAPPAS 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).