Citation Nr: 1332565 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-12 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served in the Oklahoma National Guard with active duty from May 1985 to October 1985, June 1996 to December 1996, and September 2003 to September 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for depression. The Board notes that the Veteran's claim has been characterized as entitlement to service connection for depression. However, VA treatment records show the Veteran as having diagnoses of major depressive disorder, anxiety and PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, in accordance with Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, claimed as depression and PTSD. 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 consideration of the totality of the evidence. 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 Although the Board regrets the additional delay, a remand for additional development is necessary in this case. VA Examination The Veteran contends that during active duty in Afghanistan, he served under conditions which resulted in his currently diagnosed psychiatric disorder; alternatively, he also contends that his depression diagnosed prior to active duty increased in severity while in service. The Veteran's service treatment records (STR's) reveal that in April 2002, the Veteran was diagnosed with mild depression. A permanent physical profile for depression was established. However, prior to activation for duty in September 2003, a new permanent physical profile was issued, which stated that the Veteran's medical condition of mild depression was resolved completely, and that the Veteran was authorized for foreign deployment. The Veteran's entrance examination report, dated in August 2003, noted the Veteran as normal with respect to psychiatric conditions. The Veteran is therefore presumed sound upon entry. If no pre-existing injury or disease is noted at examination upon entry into service, the Veteran is presumed to have been sound upon entry; then the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). While the Veteran is presumed to be sound upon entry into active service, the Board determines that a VA examination in necessary in this case to settle the questions as to whether the Veteran's psychiatric condition was a condition that pre-existed service and if so, was not aggravated during service in Afghanistan. Also, the examiner should give an opinion as to whether any currently diagnosed psychiatric disorder is related to his active duty service in Afghanistan. With respect to allegations of PTSD, the examiner may presume that any allegations of stressors by the Veteran are true when rendering his opinion. Duty to Notify and Assist Because the Veteran is raising allegations of PTSD and the VA treatment records show an assessment of PTSD, the Veteran should be provided notice regarding the duty to assist concerning the information and evidence necessary to substantiate his claim for service connection for PTSD. The Veteran should be asked to identify and report specific information regarding his stressors. Such should be provided on remand. Treatment Records VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 C.F.R. §3.159 (2013). There is evidence in the claims file that the Veteran underwent private treatment with Dr. C. prior to being activated to duty in September 2003. While medical records from Dr. C. were provided by the Oklahoma National Guard, it is not certain that they provided the complete records. Since these records are relevant in determining the Veteran's condition prior to being deployed to Afghanistan, VA should contact the Veteran and have him complete the proper release forms and obtain the complete treatment records from Dr. C., as well as any other private facilities where he has received treatment. Because the Veteran has alleged that he had to return stateside due to psychiatric reasons, it is possible that his service personnel records could contain information relevant to this claim. Accordingly, efforts to obtain a complete copy of the Veteran's service personnel records as well as mental health and clinical records of treatment while the Veteran was stationed in Afghanistan should be made. The record also reflects that the Veteran had been receiving regular treatment from the VAMC in Muskogee, Oklahoma for his mental health problems. The most recent VA treatment records date back to January 2010. Based on the Veteran's apparent ongoing treatment, updated VA treatment records, from January 2010 to present, if they exist, should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must include information regarding the evidence necessary to substantiate a claim for PTSD, to include a request for specific information regarding stressors. 2. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of complete records from Dr. C., as well as any other private facilities where he has received treatment. After obtaining the completed VA Form 21-4142, VA should attempt to obtain these records not already associated with the claims file. 3. Request the Veteran's complete service personnel records from the National Personnel Records Center (NPRC) and any other appropriate sources. Also, request that any mental health and/or clinical records for mental health treatment, including in Afghanistan, be included. All requests and responses should be associated with the claims file. 4. Obtain any updated VA treatment records from the VAMC in Muskogee and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period since January 2010. 5. Thereafter, the Veteran should be afforded a VA mental disorders examination. The complete claims folder (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) must be reviewed in conjunction with the examination, and the examiner must clearly state that such was accomplished. Any testing deemed warranted should be accomplished. All indicated tests and studies should be performed. The examiner should address the following: A) The examiner should identify the Veteran's currently diagnosed psychiatric disorders. The presence or absence of depression and PTSD should be discussed. B) The examiner must initially opine as to whether clear and unmistakable (obvious, manifest, and undebatable) evidence establishes that a psychiatric condition pre-existed active service. Please provide a complete explanation for the opinion. C) If so, then the examiner must state whether clear and unmistakable (obvious, manifest, and undebatable) evidence establishes that pre-existing psychiatric condition WAS NOT aggravated (i.e., permanently worsened) during service or whether clear and unmistakable (obvious, manifest, and undebatable) evidence establishes that an increase, if any, in service was due to the natural progression of the disease. Please provide a complete explanation for the opinion. D) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran's currently diagnosed psychiatric disorders are caused or aggravated by military service, or a service-connected disability. For purposes of PTSD, the examiner may presume as true the Veteran's allegations of stressors while in service. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. 6. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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 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). _________________________________________________ MILO H. HAWLEY 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).