Citation Nr: 1330435 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 13-16 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an adjustment disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph Aquilina, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This case comes before the Board of Veteran's Appeals (the Board) on appeal from a June 2010 rating decision rendered by the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Veteran's online Virtual VA folder indicates that there is additional evidence pertinent to this claim and such evidence has been included for consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 The Veteran contends that he experiences symptoms of survivor's guilt, anxiety, compromised interpersonal skills and nightmares are the result of an in service stressor related to a mortar attack. The evidence corroborates the Veteran's account of his stressor. In his initial claim for service connection, the Veteran stated he was seeking service connection for PTSD. The June 2010 decision limited its scope of review to that particular issue/disability. However, a review of the record shows that the Veteran has also been diagnosed as having other psychiatric diagnoses. A May 2010 VA examiner diagnosed him as having an adjustment disorder rather than PTSD. VA treatment records reference problems with depression and anxiety. Accordingly, and in order to best incorporate the Veteran's contentions and medical evidence of record, the Board has reframed the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an adjustment disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). As alluded to above, the Veteran's claim for service connection for PTSD was denied because the Veteran did not meet the criteria for a diagnosis. The May 2010 VA examiner determined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-IV. 38 C.F.R. § 4.125 (2013). The examiner instead diagnosed the Veteran as having an adjustment disorder with depressed mood. However, even though the Veteran reported a history of depression and alcohol abuse since service, the examiner failed to provide a nexus opinion with respect to the etiology of the Veteran's psychiatric status and specifically whether adjustment disorder with depressed mood stemmed from his in service stressor. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A Remand is therefore in order for additional development including a VA nexus opinion addressing the nature and etiology of the Veteran's current psychiatric disorder. The claims file also reflects that the Veteran has received treatment for his claimed psychiatric disorder through the Tennessee Valley VA Healthcare System. The claims file only includes treatment records from that provider dated from November 2010 to August 2012. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. 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) (2013). Expedited handling is requested.) 1. Afford the Veteran updated 38 C.F.R. § 3.159(b) notice, to inform him of the evidence necessary to substantiate his claim for service connection for any current psychiatric disorders, to include an adjustment disorder, depression and PTSD, and what evidence he is to provide and what evidence VA will attempt to obtain on his behalf. 2. Contact the Veteran and ask him to identify all VA and non-VA healthcare providers that have treated him for his claimed psychiatric disorder. After receiving the necessary medical release, all identified records should be obtained. Regardless as to whether or not the Veteran responds, treatment records from the Tennessee Valley VA Healthcare System dated from August 2012 to the present should be obtained. Any negative response should be included in the claims file. 3. After the above has been completed, schedule the Veteran for a VA examination to address the nature and etiology of any current psychiatric disorder. Due consideration should be given to the fact that the Veteran has a terminal illness and that all possible accommodations should be made in scheduling the examination, e.g., sending an examiner to where the Veteran is currently receiving his treatment. All tests and studies deemed appropriate by the examiner should be conducted. Thereafter, based on the clinical findings obtained on examination and the review of the pertinent clinical history contained in the Veteran's claims file, the VA examiner should: a. Assign a diagnosis for each current psychiatric disorder as well as any psychiatric disorder that has existed during the appeal period. If a diagnosis of PTSD is not rendered, the examiner should reconcile his or her findings with those made by the Veteran's treating mental healthcare team. b. For each psychiatric disability that is diagnosed, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any identified psychiatric disorder had its onset in service or is otherwise etiologically related to the Veteran's active service or any incident related thereto. Please note that the Veteran's reported of in-service stressor of coming under enemy mortar attack has been verified. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above instructions have been accomplished, adjudicate the issue of acquired psychiatric disability. If any of aspect of this claim is not granted, provide the Veteran with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto. 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 is 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). _________________________________________________ MICHAEL A. HERMAN 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).