Citation Nr: 1332117 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 11-03 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and E.B., K.B., and S.B. ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1972 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In January 2013, the Veteran appeared at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. The Veteran's VA Form 9, received in February 2011 is also construed as a request to reopen a claim of service connection for a low back disorder. This is referred back to the RO for appropriate action. 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 seeks service connection for an acquired psychiatric disorder. While he has a past diagnosis of bipolar disorder, his medical history and hearing testimony raise the possibility of additional or alternative diagnoses, to include depression, PTSD, and substance abuse. Multiple medical diagnoses that differ from the claimed condition, do not necessarily represent wholly separate claims, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert claimant, and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board will consider all possible mental health diagnoses as part of this claim. The Veteran has submitted a statement from his mental health provider that indicates that his current disability may be the result of his military service. Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition, the Veteran testified at hearing that he had been treated extensively at the Denver VA Medical Center and at the Fitzsimmons Medical clinic in Aurora Colorado for his mental health disability. Records indicate that he has also received private medical treatment for this disability. The claims file does not contain any of the VA mental health treatment records and only a very limited number of private treatment records. As all such records are relevant to the proper adjudication of this claim, every effort should be made to associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify all sources of treatment or evaluation he has received for his mental health problems, and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO should obtain for the record copies of the complete records of all such treatment and evaluation from all identified sources. All treatment records for VA and other government-affiliated facilities should be associated with the claims file. If, after all due diligence, it is determined that any of the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. The RO/AMC should ask the proper federal records custodian to furnish a complete copy of the Veteran's service personnel record, to specifically include any discussion of the stressor activities he identified at the hearing. If, after all due diligence, it is determined that the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). 3. Afford the Veteran an appropriate VA psychiatric examination to determine whether it is at least as likely as not (probability 50 percent or greater) that his current acquired psychiatric disability was incurred in or aggravated by his military service, to include the specific stressor incidents discussed at hearing. The examiner should specifically identify the Veteran's proper psychiatric diagnosis or diagnoses. * If PTSD is among the identified diagnoses, the examiner should identify the stressor or stressors upon which such diagnosis is based and offer an opinion on whether such identified stressor incidents are sufficient to support a diagnosis of PTSD. The examiner should also address whether any of the stressor incidents is related to the Veteran's fear of hostile military or terrorist activity due to active service, to include while on active duty in the waters off Vietnam. For purposes of this opinion, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. * If PTSD is not among the identified diagnoses, the examiner should offer an opinion as to whether the identified disability was caused or aggravated by any of the events in service, and should specifically identify such events. The examiner should provide the rationale for any and all opinions rendered. A copy of the entire claims file and virtual electronic record, to include the records obtained pursuant to the directive above, should be provided to the examiner for review. 3. To avoid any additional delay, the RO/AMC should review the medical opinion to ensure that all questions are addressed and that all opinions are supported by rationale sufficient to support adjudication. 4. If the examiner provides a diagnosis of PTSD not related to hostile terrorist or military activities, the RO/AMC should endeavor to verify the occurrence of such stressors through the service personnel records obtained (as directed above) or through any other relevant sources prior to returning this claim to the Board. 5. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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. 2013). _________________________________________________ Eric S. Leboff 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) (2013).