Citation Nr: 1329211 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-26 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 20 percent for glaucoma with cataracts. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to June 1980. These matters come on appeal before the Board of Veteran's Appeal (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for PTSD and denied an increased rating in excess of 10 percent for the Veteran's service-connected glaucoma. The Veteran expressed disagreement with this decision. In a May 2010 decision, the RO increased the Veteran's disability rating for glaucoma to 20 percent. As the Veteran has not expressed satisfaction with this determination, and it is not a full grant of the benefit sought, his appeal proceeds from the determination. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board notes that the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2011. Transcript of the hearing has been associated with the claims folder. The United States Court of Appeals for Veterans Claims (Court) has recently held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet App 1 (2009). In this case, the Board has considered the Veteran's claim for all possible psychiatric disorders and has recharacterized the issue accordingly. 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 Veteran asserts that he has a current acquired psychiatric disorder as a result of his military service (in particular, the mortar attacks in Vietnam). This claim was previously denied in large part because the RO found that there was no diagnosis of PTSD. Upon review of the record, the Board concludes that further evidentiary development is necessary. The Board notes that the evidence of record does not show that the Veteran carries a diagnosis of PTSD. However, a VA examination report dated in May 2009 does show that the Veteran has a diagnosis of major depressive disorder. The examiner did not give a definite etiology opinion concerning this new diagnosis, but stated that due to the complex presentation of the Veteran's symptoms it is "difficult to determine whether his depression is primary or due to a general medical condition (and he has a bunch of multi- system diseases)." The opinion by the examiner seems to suggest that the Veteran's psychiatric disorder may be secondary to his other illnesses. The Veteran is currently service-connected for diabetes, glaucoma with cataracts, hypertension, and right meralgia paresthetica, among others. The Board finds another VA examination is necessary to determine whether the Veteran has a diagnosis of a psychiatric disorder caused by service or service-connected disorders. Given that the acquired psychiatric disorder claim is now also being considered on a secondary basis theory of entitlement, the AMC must provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection on a secondary basis, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). For the eye disability, the Board notes the Veteran underwent a VA eye examination in April 2010. However, during the April 2011 Travel Board hearing, the Veteran asserted that his eyes continue to deteriorate. The Board finds the evidence suggests a worsening since the last VA examination and the Veteran should be scheduled for an additional VA eye examination. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). It therefore is the judgment of the Board that the Veteran should be provided another VA examination to determine the current level of severity of his eye disability. Accordingly, the case is REMANDED for the following action: 1. The AMC should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of secondary service connection for a psychiatric disorder, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 2. The RO should furnish to the Veteran and his representative a letter requesting that the Veteran identify any additional evidence pertinent to the claims on appeal that is not currently of record. In particular, the Veteran should be asked to identify any sources of mental health treatment since April 2009 and eye treatment since July 2011. The RO should specifically request that the Veteran provide, or sign appropriate authorization for the RO to obtain, any outstanding private medical records. The RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The AMC should arrange for the Veteran to undergo a VA eye examination at a VA medical facility to ascertain the current level of severity of his service-connected eye disability. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 4. The AMC should arrange for the Veteran to undergo a VA examination, by psychiatrist or psychologist, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and all lay assertions submitted in support of the Veteran's claim, to include the Veteran's, and his wife's own assertions. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. If PTSD is diagnosed, the examiner should indicate whether it is at least as likely as not that the PTSD is related to a fear of in-service hostile military or terrorist activity. If any other psychiatric disability is diagnosed, the examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater probability) that the disability had its onset in or is caused or aggravated by service or any service-connected disorder. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 6. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all evidence (to particularly include all that added to the record since the RO's last adjudication of this claim) and legal authority. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ C. TRUEBA 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).