Citation Nr: 1329257 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-24 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for congestive heart failure with pacemaker and stent. 4. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Mary M. Long, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from November 1942 to February 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the above claimed benefits. The Veteran provided testimony during a videoconference hearing before the undersigned in August 2013. A transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 During VA treatment, the Veteran identified multiple private treatment providers, including two primary care physicians, Dr. Thompson and Dr. Lindsay, and a nephrologist, Dr. Gigi Toma at St. Anthony's (presumably St. Anthony's Hospital in Oklahoma City). VA has a duty to obtain relevant records of private treatment. 38 U.S.C.A. § 5103A(b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994). These records are relevant to the appeal and efforts to obtain them should be conducted following the procedures under 38 C.F.R. § 3.159 (2013). It appears that the Veteran was receiving regular VA treatment and there is no indication that that has changed. The last VA treatment records in the claims file are dated in July 2012. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. The Veteran received a VA examination in connection with his claim for service connection for PTSD. The VA examiner found that he did not fit the DSM-IV criteria for a PTSD diagnosis. However, during the Board hearing, the Veteran stated that he was not being truthful in how he answered the examiner's questions because he was concerned about the examiner's intentions and impressions. He stated during the hearing that he would be willing to report for a new examination. The Board notes that the Veteran submitted a March 2012 private examination report, in which a physician diagnosed the Veteran with PTSD based largely on the Veteran's fear of hostile military activity and seeing dead bodies. The Board notes that the physician was not a psychiatrist or psychologist. VA recently amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39843 (Jul. 13, 2010). Therefore, based on the private physician's diagnosis and the fact that the Veteran did not provide accurate information to the last VA examiner, the Board requests that a new VA examination be provided determine if PTSD, or any other psychiatric disability, is present, and if so, if the disability is connected to an in-service stressor or incident. The Board notes that it is the Veteran's responsibility to support his claim for benefits, which means that he must provide accurate information to the examiner so that a proper VA opinion can been obtained. See 38 U.S.C.A. § 5107 (a) (West 2002); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is a two-way street). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment, including with the two primary care providers and the nephrologist referenced in the VA treatment records. If the Veteran fails to complete necessary authorizations, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 2. Obtain all outstanding VA medical records, including those created beginning in July 2012, and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 3. Once the above development has been completed and all relevant evidence has been associated with the claims file, the Veteran should be scheduled for a VA psychiatric examination with a psychologist or psychiatrist. The examiner should review the claims folder, including all relevant records in the virtual file, and note such review in the examination report or in an addendum. The examiner should provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. If not, the examiner should specify which of the criteria are not met. If the Veteran does meet the PTSD criteria, the examiner should specify the stressors supporting the diagnosis and provide a detailed description of the stressors. The examiner should also provide an opinion as to whether any other currently diagnosed psychiatric disability at least as likely as not (e.g., a 50 percent or greater probability) had its onset in service or is the result of a disease or injury in service. The examiner should provide a rationale for each of the opinions that takes into account the Veteran's reports of injuries, stressors, and symptoms. 4. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. The Board notes that if service connection for PTSD is established, additional development regarding the other claims on appeal may be necessary. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 2002 & Supp. 2012). _________________________________________________ J. A. MARKEY 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) (2013).