Citation Nr: 1332929 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-44 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA should consider alternative psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. In light of the Clemons doctrine-claimants seek benefits for disabilities as they perceive them based upon particular symptoms, not based upon a particular medical term causing the perceived disability-the Board construes the appellant's claim broadly as a claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents reveals a March 2013 hearing transcript. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issue on appeal. 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 Documents in the claims file show that relevant Social Security records may be outstanding. A VA pension claim dated November 2006 and a Social Security Administration inquiry dated July 2007 indicate that the Veteran has been receiving monthly Social Security benefits since 1994 when he was 51 years old. No other documents related to Social Security are of record. Social Security records could provide medical evidence of the Veteran's claimed PTSD and are therefore potentially relevant to the appealed issue. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security records if there is a reasonable possibility that the records would help substantiate the Veteran's claim.) Thus, the RO should obtain the Veteran's Social Security records, following the current procedures prescribed in 38 C.F.R. § 3.159 as it relates to Federal records requests. Additionally, in a March 2013 hearing transcript, the Veteran reported that he had been diagnosed with PTSD over 20 years ago in a non-VA facility in Elizabeth New Jersey. The Veteran should be contacted to further clarify the location of these documents and to identify any other relevant treatment that is not currently of record. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to clarify and identify any healthcare provider who treated him for an acquired psychiatric disorder to include PTSD at any time since separation from active duty. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file. In particular, the RO should ask the Veteran to clarify the dates and location of his claimed PTSD diagnosis in Elizabeth, New Jersey. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The Social Security Administration should be contacted, and all medical records associated with the Veteran's claim for benefits from that agency should be obtained and associated with the claims file. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, if and only if, any subsequently obtained records indicate that the Veteran's current symptoms may be related to his military service, the RO/AMC should schedule the appellant for a VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. All indicated tests must be accomplished. The claims folder to include access to Virtual VA, and a copy of this remand must be made available to the examiner. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. If the Veteran is diagnosed with PTSD, the examiner is to state whether the reported in-service stressors are adequate to support a diagnosis of PTSD, and if so, whether it is at least as likely as not that the Veteran's psychiatric symptoms are related to the claimed in-service stressors. If the Veteran is diagnosed with an acquired psychiatric disorder other than PTSD, the examiner is to opine whether it is at least as likely as not that the disorder is related to the Veteran's active military service or events therein. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why the cause of any diagnosed psychiatric disorder is unknowable. 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC should readjudicate the remanded issue. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the appellant and his representative should be provided 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 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). _________________________________________________ DEREK R. BROWN 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).