Citation Nr: 1331933 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 12-26 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from February 1951 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board notes that the psychiatric claim on appeal has been developed as a claim for PTSD. However, the Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the claim on appeal has been recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. 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 The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran contends that his current psychiatric disorder is related to events during service. He submitted stressor statements in which he described specific incidents during his service as a sniper during the Korean War. He stated that he had continuous nightmares of his last "kill" of a non-combatant man who was eating his lunch, and he described coming face-to-face with a Chinese soldier that he killed when he fired six to twelve rounds in the man's face. See January 2011 and March 2011 stressor statements. The Board notes that the Veteran's DD-214 indicates that his military occupational specialty was machinist and that he was awarded the Korean Service Medal with two stars, the United Nations Medal, and the National Defense Service Medal. In January 2011, the RO requested the Veteran's service personnel record from the National Personnel Records Center (NPRC). In a February 2011 response, NPRC indicated that it had conducted an extensive and thorough search of the records among its holdings and it was unable to locate the Veteran's service personnel records. NPRC concluded that the records either did not exist or they were not located at NPRC. Thereafter, in October 2011, the RO made a formal finding of unavailability for the Veteran's service personnel records. It does not appear that the RO notified the Veteran of the RO's inability to obtain a copy of his service personnel records. Therefore, on remand, the RO should notify the Veteran that the attempt to obtain his service personnel records was unsuccessful and provide him the opportunity to submit a copy of any records in his possession, any evidence that shows that he had combat service in Korea, and/or any evidence that shows he was temporarily assigned to sniper duty during service. A review of the VA treatment notes associated with the record also shows the Veteran was diagnosed with a chronic adjustment disorder with anxiety and depression in November 2010. In a January 2011 VA treatment note, a social worker noted that the Veteran's symptoms, including rare nightmares, increased irritability, sadness about the past, and sad memories about the past, may be indicative of depression connected with his service, but PTSD required many more symptoms that interfered with his life to a much greater degree. In a November 2011 VA examination report, the examiner noted that, although the Veteran had some symptoms of PTSD, he did not exhibit other symptoms required to meet the diagnostic criteria for a diagnosis of PTSD. Rather, he diagnosed the Veteran with an adjustment disorder with mixed anxiety and depressed mood. He opined that the Veteran's symptoms were related to his current living arrangements and not his combat-related stressors. In a March 2012 notice of disagreement (NOD), the Veteran asserted that the November 2011 VA examiner "focused almost exclusively on [his] current problems, and failed to get at the fact that the [V]eteran's symptoms had been present for many years" prior to the VA examination. See September 2013 statement submitted by the Veteran's representative. In the September 2013 statement, the Veteran's representative contended that the VA examiner "overly focused on the current situation, and failed to discuss the early symptoms of the disorder" that manifested before his current life circumstances, rendering the opinion inadequate. Therefore, the Board finds that a VA medical opinion is necessary to determine the nature and etiology of any psychiatric disorder that may be present. 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. The RO/AMC should contact the appropriate service department and/or records custodian(s), to include NPRC, with a request for copies of any outstanding service personnel records, to include any records showing participation in combat operations. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action to be taken and he should be provided an opportunity to submit copies of the outstanding records. 2. The RO/AMC should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, any VA treatment records not associated with the record. The RO/AMC should provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO/AMC should then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. After obtaining any additional records identified by the Veteran, the claims file and a copy of this remand should be returned to the November 2011 VA examiner (or if he is unavailable, to another suitably qualified examiner) for a medical opinion to determine the nature and etiology of any psychiatric disorders that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled. (An examination may be necessary if there are additional treatment records obtained that document new or different diagnoses of a psychiatric disorder.) It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is requested to review the claims file and his November 2011 opinion and to identify all current psychiatric disorders. He should specifically indicate whether the Veteran has a depressive disorder. For each diagnosis identified other than PTSD, the examiner should discuss whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) Regarding PTSD, the RO/AMC should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 4. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 Supp. 2012). _________________________________________________ JESSICA J. WILLS 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).