Citation Nr: 1332077 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-30 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2007 decision by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for PTSD and chronic depression. The United States Court of Appeals for Veterans Claims (Court) 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the appeal as certified to the Board was limited to the claim of entitlement to service connection for PTSD. However, as the Veteran has been diagnosed with multiple psychiatric disorders, the Board finds that issue on appeal is more appropriately characterized has considering all reported and diagnosed psychiatric disabilities in accordance with Clemons. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. 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 After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD must be remanded for further evidentiary development. Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). During the pendency of this appeal, a new version of 38 C.F.R. § 3.304 was promulgated. See 75 Fed. Reg. 39843 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010. Because the Veteran's PTSD claim was appealed to the Board before July 13, 2010, and is being decided thereafter, the updated version of the law is applicable. When the Board addresses questions or issues that the RO did not previously consider, "the Board must secure a waiver from a claimant or otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the question or issue." See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Similarly, where the Board considers law not previously considered by the RO, the Board is required to notify the claimant and indicate that consideration of this law may result in a decision adverse to the claimant. See 38 C.F.R. § 20.903(b) (2012) (requiring Board to "notify the appellant and his or her representative" of its intent to consider a law not considered by RO, where consideration "could result in denial of the appeal"). McBurney v. Shinseki, 23 Vet. App. 136, 138 (2009). In this case, the Veteran has not been advised of the new version of 38 C.F.R. § 3.304(f). On Remand, he should be so notified. VA must attempt to obtain all records associated with the Veteran's award of Social Security Administration (SSA) disability benefits. The record shows the Veteran is in receipt of Social Security Disability with the onset date indicated as of March 2002. On Remand, the records should be associated with the claims file. VA's duty to assist includes obtaining relevant Federal records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The Veteran asserts he has PTSD caused by a rocket attack on his unit in Vietnam. The Veteran describes he ran for cover, woke up in a hospital and has had constant ringing in his ears and back pain, sleeplessness and chronic depression. See VA Form 526. The RO was unable to attempt verification of this attack because of the Veteran's has failed to provide completed PTSD surveys. The Veteran representative has asserted his condition has prevented him from "being more expressive." See October 2009 VA Form 646. The Board acknowledges that the Veteran's asserted stressors are vague and do not contain sufficient detail to allow VA to attempt verification. However, the Board finds that attempt should be made to determine if additional service treatment records related to the alleged hospitalization in 1969 may be available. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. See Mclendon, 20 Vet. App. at 83. The Board notes that the Veteran has submitted private treatment records from his treating physician which reflects diagnoses of PTSD, major depression and polysubstance abuse, and records indicating that the Veteran reported intrusive thoughts and other symptoms he believed to be related to Vietnam. Although his service treatment records are negative for diagnoses of a psychiatric disorder, those records do contain the suggestion that certain physical complaints for which he had sought treatment may be "hysterical manifestations." Given the Veteran's assertions, and in-service findings, the Board finds that the low threshold of McLendon has been met. As such, the Veteran should be scheduled for a VA examination to diagnose him with all current psychiatric disabilities, and to determine whether any such disability had its onset in service or is otherwise related to his active duty service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). The Board reminds the Veteran that the duty to assist is not a one-way street. The record indicated the Veteran has twice failed to respond to a PTSD questionnaire. If the Veteran wishes to help developing his claim while this case is in remand status, he cannot passively wait for it. He must act by providing all requested information and documentation so that VA can obtain all putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of the recent changes to 38 C.F.R. § 3.304(f). See 75 Fed. Reg. 39843 (July 13, 2010). 2. Request any additional service treatment records that may be available, to specifically include records of any hospitalization at the Naval facility in Camranh Bay in 1969. If no additional records are available, this should be documented in the claims file. 3. Associate SSA disability records with the claims file. 4. Upon receipt of any new records, schedule the Veteran for an appropriate VA examination for his claim for service connection for an acquired psychiatric disorder. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file, including any pertinent evidence contained in Virtual VA, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of symptoms relating to his claimed disorder. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all psychiatric disabilities and determine whether he has a diagnosis of PTSD in accordance with the criteria set forth in the DSM-IV. Then, an opinion should be provided as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's psychiatric disabilities or PTSD had its onset in service, or is otherwise related to service. The examiner should provide a complete rationale for any opinion provided. 5. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims remaining on appeal. If the benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 Supp. 2012). _________________________________________________ MICHAEL LANE 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).