Citation Nr: 1334912 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 06-23 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active service from March 1964 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. This matter was previously before the Board in September 2009, December 2010, and March 2012 at which time it was remanded for additional development. It has now been returned to the Board for appellate review. 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 which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). In compliance with the Court's holding in Clemons, the Board has characterized the issue as reflected on the first page, above. In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does currently contain evidence pertinent to the claims - namely, VA treatment records dated between June 2006 and October 2011. 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 A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred; this case is remanded to the RO/AMC for action as described below. Pursuant to the Board's December 2010 Remand, the Veteran underwent a VA examination in May 2011. The examiner indicated that the Veteran met the DSM-IV stressor criteria based on fear of hostile enemy activity in Vietnam. However, the examiner also found that the Veteran did not meet the diagnostic criteria for PTSD. The examiner noted that the Veteran had frequent, chronic, mild, daily PTSD symptoms, but did not discuss why such symptoms were not sufficient to warrant a PTSD diagnosis. Additionally, the examiner opined that the Veteran's depression was due solely to his spinal cord injury. However, VA treatment records associated with the claims file include August 2005 and September 2005 records which document that the Veteran had been seen and treated for depression and PTSD symptoms - this was prior to his October 14, 2005, spinal cord injury. In light of the lack of clarity and the opinion based upon facts inconsistent with the evidence of record, the Board remanded the case for an additional examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303(2007) (VA must provide an examination that is adequate for rating purposes). However, the Veteran terminated the examination, and the examining psychologist did not offer any opinion as to the questions raised by the March 2012 Board remand. Thus, while the RO did arrange for psychological examinations of the Veteran, the examiners' findings were inadequate and would not withstand judicial review. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995) (stating if medical opinion of record was based on incomplete records, it is of limited probative value) and Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a Veteran's claims file). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided) ; Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Pursuant to the remand directives, the appellant was afforded a VA examination by a psychologist in April 2012. Furthermore, VA has a duty to return for clarification unclear or insufficient examination reports. In particular, such clarification should be obtained where the missing evidence bears greatly on the probative value of the examination report. Thus, this case must be remanded so that an adequate medical opinion as to the etiology and onset date of the Veteran's current psychiatric pathology can be generated. See Savage v. Shinseki, 24 Vet. App. 259 (2011). In addition, review of the evidence of record reveals that the May 2006 VA examiner noted that the Veteran had a claim for Social Security Administration disability benefits pending. None of the associated Social Security Administration records have been included in the evidence of record. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). When VA has actual notice that a claimant is receiving disability benefits from the Social Security Administration, the duty to assist requires VA to obtain a copy of the decision and the supporting medical records upon which the award was based. Murincsak v. Derwinski, 2 Vet. App. 363, 372-73 (1992). VA needs to make as many requests as are necessary to obtain relevant records from a Federal department or agency, to include the Social Security Administration. 38 C.F.R. § 3.159(c)(2). As long as a reasonable possibility exists that any such Social Security Administration records are relevant to a Veteran's claim, VA is required to assist said Veteran in obtaining the identified records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). For the purpose of 38 U.S.C.A. § 5103A, relevant records are defined as those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Id. at 1321. Therefore to ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford the appellant full procedural due process, the case is REMANDED for the following: 1. The RO/AMC shall ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A and the implementing regulations found at 38 C.F.R. § 3.159 is completed. 2. The RO/AMC shall contact the appellant and obtain the names and addresses of all medical care providers (private, VA, or other government) who have treated him for any psychiatric condition since 1966. After securing the necessary release(s), the RO/AMC shall obtain all outstanding records. In particular, VA treatment records dated from October 2011 onward must be obtained. 3. The RO/AMC shall contact the Social Security Administration to obtain all the medical records associated with the Veteran's initial application for benefits, as well as any Social Security Administration Administrative Law Judge decision along with the associated List of Exhibits, as well as copies of all of the medical records upon which any decision concerning the appellant's entitlement to disability benefits was based. Associate those records with the claims file. 4. To the extent there is an unsuccessful attempt to obtain any of these records, the claims file must contain documentation of attempts made. The appellant and his representative must also be informed of the negative results and be given the opportunity to secure the records. 5. After completing any additional notification and/or development action deemed warranted by the record, the RO/AMC shall arrange for a review of the Veteran's claims file by a psychiatrist who has not previously examined the Veteran in order to determine the nature, onset date and etiology of any current psychiatric or psychological pathology and specifically to determine whether it is linked to the Veteran's active service. The psychiatrist must be advised that the Veteran's asserted stressor events in service have been conceded as his unit in Vietnam came under hostile fire. The reviewing psychiatrist must acknowledge that the Veteran was treated for depression prior to his October 2005 spinal cord injury. The reviewing psychiatrist must respond to the following specific questions and provide a full statement of the basis for the conclusions reached: a. Does the Veteran currently have any chronic psychiatric or psychological pathology? If so, list each diagnosis and give an onset date for each diagnosis. In particular, the reviewing psychiatrist must identify whether the Veteran specifically has a diagnosis of PTSD in accordance with DSM-IV based on an event(s) during his active duty service. The psychiatrist must also identify the symptoms that support such diagnosis, or those lacking, but necessary for such diagnosis. b. Is it at least as likely as not that the Veteran's current psychiatric pathology is causally or etiologically related to his period of active service? (It is not necessary that the exact causes - other than apparent relationship to some incident of service - be delineated.) c. Is it at least as likely as not that the Veteran's current psychiatric pathology is related to symptoms or signs he may have manifested during service (March 1964 to June 1966)? d. Is it at least as likely as not that the Veteran's current psychiatric pathology related to symptoms and signs that may have occurred within one year after his service separation in June 1966? In rendering the requested opinions, the psychiatrist must acknowledge the Veteran's competent reports as to the onset and continuity of symptomatology. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a psychiatric disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 6. Upon receipt of the VA psychiatrist's report, the RO/AMC shall conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, the RO/AMC must refer the report to the VA psychiatrist for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 7. After all appropriate development has been accomplished, the RO/AMC shall consider all of the evidence of record and re-adjudicate the appellant's claim. The RO/AMC must address all theories of service connection (direct, presumptive, aggravation, and secondary). 8. If the benefit sought on appeal remains denied, the appellant and his representative must be provided a Supplemental Statement of the Case that addresses all the evidence of record and they should be given an appropriate period of time 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).