Citation Nr: 1329110 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-39 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from February 1990 to November 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in November 2011. A transcript of the hearing is associated with the claims folder. The Board previously denied the Veteran's claim in a May 2012 decision, but the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion to vacate this decision and remand the matter back to the Board for additional action in December 2012. A review of the Virtual VA paperless claims processing system reflects that the Veteran's represented submitted an appellate brief in June 2013. 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 In a December 2012 Order, the Court granted a Joint Motion in which the parties agreed that the Board erred in not adequately addressing the lay and medical evidence of record in light of Court precedent. Specifically, the parties found that the Board in categorically rejecting the competency of the Veteran's lay contentions with respect to establishing a nexus. Further, the parties found that the Board erred in finding no current psychiatric disorder when the Veteran had previous diagnoses of anxiety, depressive disorder, and PTSD during the appeal period. The Board was directed to consider the impact, if any, of the Court's decision in McClain v. Nicholson, 21 Vet. App. 319, 320-21 (2007) (holding that requirement that there be a current disability is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). The RO/AMC must associate with the claims file all medical records not associated with the claims file and update the file with any more recent medical records from July 2008 to the present before a decision on the merits can be rendered. VA has a duty to obtain all relevant VA and governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). After all relevant treatment records are obtained, the Veteran should be afforded another VA examination. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding recent VA treatment records since July 2008, including but not limited to, all records from Houston VA Medical Center, VA Medical Center PEAC Clinic, Lebanon Medical Center, Houston Vet Center; Orlando Florida Vet Center, and Norristown Vet Center. (See November 2011 written statement from Veteran and on pages 13-16 of the November 2011 hearing transcript). 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any currently present acquired psychiatric disorder. Any and all tests or studies deemed necessary should be performed and all clinical findings should be reported in detail. The complete claims folder, to include pertinent evidence in the Virtual VA eFolder, must be provided to the examiner for review of pertinent documents in conjunction with the examination and the examiner must specify that the claims folder has been reviewed. The examiner should elicit from the Veteran specific details concerning her claimed stressors and note that, in addition to the medical reports, the Veteran's statements have been considered. The examiner is specifically asked to review all previous medical reports of record, in which the Veteran has received a diagnosis of PTSD, anxiety, depression, and any other psychiatric disability related to her claimed in-service sexual assault and any other service stressor (i.e., retaliation, harassment, and fear), including the August 2007 and December 2007 written statements from Dr. Ken Vehec and the July 2008 VA treatment record diagnosing PTSD and depressive disorder, NOS. If the examiner finds that the Veteran currently meets the diagnostic criteria according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV") of the American Psychiatric Association for a diagnosis of PTSD, he or she should provide an opinion as to the likelihood that the claimed in-service stressor(s) actually occurred; and if so, whether the Veteran's PTSD is the result of such stressor(s); or whether any other verified stressor supports a diagnosis of PTSD. The examiner should be advised that in assault cases, 38 C.F.R. § 3.304(f)(4) allows VA to take into account the opinion of a medical professional as to the likelihood that a stressor actually occurred based on the available evidence at the time of the event and thereafter, rather than relying only on the provider to determine whether or not a stressor supports a diagnosis of PTSD. With respect to any currently present acquired psychiatric disorder other than PTSD, the examiner should provide an opinion regarding whether regarding whether such acquired psychiatric disorder is related to any disease or injury in service. The examiner must provide the underlying reasons for any opinion expressed, which must take into account the evidence of record, as well as a discussion of the medical principles involved. 3. Next, review the examination report for compliance with the Board's directives. If an adequate response is not offered for any directive, then return it to the examiner(s) for an addendum. 4. Finally, readjudicate the claim in light of the additional evidence obtained. If the benefits sought are not granted to the Veteran's satisfaction, send her and her representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the case to the Board for further appellate consideration. The Veteran 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). _________________________________________________ D. C. SPICKLER 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).