Citation Nr: 1330351 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-26 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal is remanded to the RO. REMAND The Veteran has specifically claimed entitlement to service connection for posttraumatic stress disorder (PTSD). She claims that she was subjected to sexual harassment during active duty and that this has resulted in her developing PTSD. Claims for service connection for psychiatric disorders, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Despite the fact that the Veteran specifically claimed service connection for PTSD, and the fact that there is no evidence showing that the Veteran has any current psychiatric disability, Veteran's attorney has specifically asserted that the RO has not considered the claim for service connection for psychiatric disabilities other than PTSD. Recent correspondence from the Veteran's attorney dated through May 2013 indicates that they requested copies of VA examination reports and medical records, which were not provided prior to the claim being returned to the Board. The Veteran's attorney submitted copies of medical studies related to harassment and the development of psychiatric disabilities after the VA examination was conducted. Moreover, review of the VA examination report does not reveal that the examiner reviewed service personnel records related to the Veteran's in-service disciplinary actions. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claims, to include all health care professionals and/or facilities (private and governmental) where she had been treated for any psychiatric disability since her separation from service in 1980. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The Veteran and her attorney must then be given an opportunity to respond. 2. The Veteran's attorney must be provided with the VA medical records which were requested, but not provided. The record must document that the requested records were provided to counsel, and the Veteran and her attorney must then be given an opportunity to respond. 3. The Veteran must be afforded a VA psychiatric examination to determine whether any current psychiatric disorder found is related to her military service. The examination report must include a detailed account of all psychiatric pathology found to be present. All necessary tests should be conducted and the examiner must review the results of any testing prior to completion of the report. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must review the service personnel records, which show the Veteran's in-service disciplinary proceedings, as well as the documented reason for her early separation from service on the complete copies of the DD 214 contained in the records envelope. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state * The exact diagnosis of any current psychiatric disorder(s) found to be present * Whether any current psychiatric disability found is a result of harassment during active service, is related to the diagnosis of adult situational reaction made during service in August 1980, or is otherwise related to the Veteran's military service. * If a diagnosis of PTSD is appropriate, the examiner must specify the credible "stressors" that caused the disorder and the evidence upon which the existence of the stressor(s) is established. The examiner must also describe which stressor(s) the Veteran re-experiences and how she re-experiences them. * If a diagnosis of a psychiatric disability other than PTSD is appropriate, the examiner must specify its relationship, if any, to the Veteran's military service and/or the harassment she claims to have experienced therein. * The examiner must review the copies of the medical studies submitted by the Veteran's attorney and must comment on their applicability to any diagnosis present. Any psychiatric diagnosis provided must be in accordance with the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. rev., 1994). A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is her responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to her last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and her attorney. After the Veteran and her attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).