Citation Nr: 1335446 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-03 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder, not otherwise specified (NOS). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Gladney, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied his service connection claim for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims, specifically to include those for PTSD. As emphasized in Clemons, though an appellant may only seek service connection for PTSD the appellant's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed..." Id. In essence, the Court found that an appellant does not file a claim to receive benefits for a particular psychiatric diagnosis, such as PTSD that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the appellant's mental condition. In this case, the Veteran specifically sought service connection for PTSD; however, he is diagnosed with an anxiety disorder, NOS. Taking into account these factors as well as the Court's findings discussed herein, the Board has re-characterized the issue accordingly as noted on the first page of this decision. 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. He primarily asserts that he has PTSD. The Veteran was afforded a VA mental health examination in June 2010 to determine the nature of any current psychiatric disability. After examining the Veteran and reviewing the claims file, the examiner determined that the Veteran did not meet the criteria for PTSD. Instead, the examiner diagnosed the Veteran with an anxiety disorder. Thereafter, in his February 2011 substantive appeal, the Veteran stated that he has a new diagnosis and, therefore, asked that his records from the VAMC Fort Worth be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA Medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In the April 2012 supplemental statement of the case, the RO noted treatment records from the North Texas Health Care System (VAMC Dallas, Bonham, Ft. Worth Outpatient Clinic and all Outpatient Clinics in the North Texas Care System jurisdiction) from January 2011 through March 2012 as evidence; however, no such records were associated with the claims file and they are not in the virtual file. The Board needs to review those files and, therefore, cannot proceed with adjudication of the Veteran's claim at this time. To ensure that VA has met its duty to assist the appellant in developing the evidence in support of his claim pursuant to 38 U.S.C.A. § 5103A, this case must be remanded so that the Veteran's identified VA records can be sent to the Board or the records can be included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and authorize the recovery of any records of care by private physicians or clinics for his acquired psychiatric disorder. If identified and authorized, request the records and associate any records received with the claims file. 2. Take all necessary steps to associate with the claims file VA treatment records from the North Texas Health Care System (VAMC Dallas, Bonham, Fort Worth Outpatient Clinic and all Outpatient Clinics in the North Texas Care System jurisdiction) from January 2011 to the present. 3. Thereafter, if any newly associated medical evidence shows a new psychiatric diagnosis, the RO should transfer the claims file to the examiner who conducted the June 2010 VA examination for an addendum medical opinion. Another examination may be scheduled at the discretion of the examiner. 4. It is imperative that the examiner have an opportunity to review the evidence in the claims file again, including a complete copy of this remand. 5. The examiner must note any new psychiatric diagnoses and clarify whether it is at least as likely as not (50 percent or greater probability) that an acquired psychiatric disorder, to include PTSD or an anxiety disorder NOS, was caused by or due to the Veteran's service. 6. After the above development is completed, any additional development deemed appropriate should be accomplished. The claim should then be re-adjudicated. If the claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal and allow an appropriate period of time for response. This case should be returned to the Board for the purpose of appellate disposition. 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 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). _________________________________________________ MARJORIE A. AUER 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).