Citation Nr: 1330166 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-17 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable rating for degenerative joint disease, residuals of fracture, right little finger. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to June 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO in Boston, Massachusetts, currently has jurisdiction over the Veteran's VA claims folder. The Board observes that the Veteran's acquired psychiatric claim was treated below as separate claims of service connection for paranoid schizophrenia and PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that even though a veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Essentially, the Court found that a veteran does not file a claim to receive benefits only for an acquired psychiatric disorder, such as PTSD, but in fact makes a general claim for whatever mental condition may be afflicting the veteran. Therefore, the appellate issue has been identified as service connection for an acquired psychiatric disorder however diagnosed. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2011. A transcript of this hearing is of record. For the reasons detailed below, 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 service connection for psychiatric disability because he maintains that the disability is related to or had its onset in service. As to his claim for a higher rating for his degenerative joint disease of the right little finger, he contends that the condition warrants an evaluation of at least 20 percent. VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, the Board finds that further development is required in order to comply with the duty to assist. Initially, the Board notes that the Veteran testified at his August 2011 hearing that he had been in receipt of disability benefits from the Social Security Administration (SSA) since 1998. However, no records from the SSA are on file. The Court has long held that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). Therefore, a remand is required in order to obtain these records. The Veteran also indicated at his August 2011 hearing that he received treatment for both his psychiatric disorder and service-connected right little finger through VA. Although a July 2013 rating decision on unrelated claims notes VA outpatient treatment records dated to July 2013 as evidence, no such records are in the claims folder dated subsequent to November 2009 nor in the Virtual VA system. The Court has held that VA records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Relevant statutory and regulatory provisions also emphasize the importance of obtaining pertinent VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). Consequently, the Board concludes that it must also remand this case in order to obtain these records. The Board further observes that while the Veteran was accorded a VA medical examination in January 2011 regarding his psychiatric disorder claim, he has not been accorded an examination to evaluate the severity of his service-connected right little finger. Further, he indicated at his August 2011 hearing that this finger is more severe than contemplated by the current noncompensable rating, to include little or no functional use that he indicated was analogous to ankylosis/amputation of the finger. He also indicated that he had impairment of the entire hand, and not just the little finger. Therefore, the Board finds that a remand is also required to accord the Veteran an examination of this disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for his psychiatric disorder and right little finger since November 2009. This must specifically include all records of his treatment at the Brockton and Bedford, Massachusetts, VA Medical Centers, as well as any outstanding records of his treatment at the Boston, Massachusetts, Orangeburg, South Carolina, and Pittsburgh, Pennsylvania, VA Medical Centers. After securing any necessary release, obtain those records not on file. Even if the Veteran does not respond, the AMC/RO should follow-up on his account of treatment through VA during this period. 2. Notify the Veteran that he may submit lay statements from himself as well as from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric symptomatology; as well as the nature, extent and severity of his right little finger symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and severity of his service-connected right little finger disability. The claims folder should be made available to the examiner for review before the examination. The examiner should identify any orthopedic and/or neurological impairment of the Veteran's right little finger pathology. All findings and conclusions should be set forth in a legible report. 5. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset and etiology of any psychiatric disability found to be present. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner must record the Veteran's lay history as to the onset of his psychiatric problems. A diagnosis of PTSD and schizophrenia must be ruled in or excluded. Thereafter, the examiner must opine as to the likelihood that any psychiatric disability found to be present existed prior to service. If the examiner concludes that psychiatric disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having psychiatric disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran's competent report of recurrent symptoms since service. The rationale for all findings and conclusions expressed should be set forth in a legible report. 6. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since the appellate claims were last adjudicated below, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ STEVEN D. REISS 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).