Citation Nr: 1333211 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-46 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, depression, and bipolar disorder. 2. Entitlement to service connection for a sleep disorder. 3. Entitlement to service connection for a bilateral foot condition. REPRESENTATION Appellant represented by: Marcheta L. Gillam, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran had active service from November 1999 to November 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 2010, a statement of the case was issued in September 2010, and a substantive appeal was received in November 2010. The Veteran testified at a Board videoconference hearing in January 2013. A transcript is of record. The appeal is being REMANDED to the RO. VA will notify the appellant if further action on his part is required. REMAND Review of the claims file suggests that the record is incomplete. Specifically, the Veteran has testified that he received mental health counseling during his military service at Fort Polk. Further, although the earliest treatment records available for review (including on Virtual VA) are dated in August 2007, these records note that the Veteran was seen several times in PEC (psychiatric emergency center) since 2004 and had been referred to PTSD and the mental health clinic. As VA treatment records are constructively of record; and may contain pertinent information, they must be secured. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes the Veteran has not been afforded VA examinations to determine the nature, extent and etiology of his psychiatric, sleep, and foot disabilities. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the McLendon criteria are met in this case. The Veteran has stated (and is competent to observe) that he has experienced mental health impairment and foot problems since separation from service and VA treatment mental health treatment records note his reports of trouble sleeping. Given the findings of pes planus on enlistment and plantar fasciitis in service, medical evidence of current mental health treatment, and the lay statements and testimony from the Veteran that he has experienced continuous psychiatric and foot symptoms since service, an examination is warranted to address the nature, extent and etiology of his claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to obtain the Veteran's mental health counseling records during his service at Fort Polk from the appropriate record depository. All requests for records and responses to such requests must be associated with the claims folder. If any records requested are unavailable, the reason must be explained for the record. 2. Appropriate actions should be taken to obtain copies of all VA treatment records from the Veteran's separation from service in November 2003 to August 2007. 3. After completion of the above, the Veteran should be scheduled for a VA psychiatric examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Please clearly report any current acquired psychiatric disability diagnosed on examination. b) As to each acquired psychiatric disability diagnosed on examination, is it at least as likely as not (a 50% or higher degree of probability) that the disability manifested during the Veteran's active duty service or is otherwise causally related to service. For any psychosis diagnosed, please opine whether or not such at least as likely as not (50% or better probability) was manifested to a compensable degree within one year following the Veteran's separation from service (i.e., by November 2004). c) Please clearly report any current sleep disorder diagnosed on examination. As to each such disorder, please comment as to whether it is a symptom of or separate from a diagnosed psychiatric disability. If the sleep disorder is a disability (rather than a symptom), the examiner should further comment whether it is at least as likely as not (a 50% or higher degree of probability) that the disability manifested during the Veteran's active duty service or is otherwise causally related to service. The examiner should set forth reasons for the opinions with discussion, as appropriate, of the in-service and post-service evidence. 3. After completion of the above, the Veteran should be scheduled for a VA examination by an appropriate provider to determine the existence, nature, and likely etiology of any bilateral foot disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should provide opinions that respond to the following: a) Please clearly report any current disability of the feet diagnosed on examination. b) As to each diagnosed foot disability, is it at least as likely as not (a 50% or higher degree of probability) that the disability manifested during the Veteran's active duty service or is otherwise causally related to service. If the Veteran has pes planus, the examiner should further comment whether the pes planus noted on enlistment was aggravated during service beyond the natural progression of the disorder. The examiner should set forth reasons for the opinions with discussion, as appropriate, of the in-service and post-service evidence. 4. The RO should then ensure that development sought above is completed, and then readjudicate the claims. If any remain denied, issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ ALAN S. PEEVY 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).