Citation Nr: 1335617 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 98-08 158A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depressive disorder not otherwise specified (NOS). 2. Entitlement to service connection for PTSD. 2. Entitlement to service connection for hip complaints/degenerative disc disease of the hips, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 1981 to January 1993, including service in Southwest Asia during the Persian Gulf War from October 1990 to July 1991. This appeal to the Board of Veterans' Appeals (Board) initially arose from a February 1996 rating decision in which the RO denied the Veteran's claim for service connection for joint aches as due to an undiagnosed illness. In a June 1998 rating decision, the RO, inter alia, continued the previous denial of service connection for multiple joint arthralgias, as due to an undiagnosed illness, and denied service connection for degenerative changes of the hips. The Board notes that the RO recharacterized several issues in this June 1998 rating decision to comport with the Veteran's statements made during VA examinations conducted subsequent to the February 1996 rating decision. In January 1999, the Veteran testified during a Board hearing in Washington, D.C. A hearing transcript of the hearing is associated with the claims file. In March 1999, the Board, inter alia, remanded the claims for service connection for degenerative disc disease of both hips and multiple joint arthralgias for further action, to include additional development of the evidence. In September 2002, the Veteran was notified that the Member of the Board (now, Veterans Law Judge (VLJ)) who conducted the January 1999 hearing was no longer employed by the Board and that he had a right to another hearing; the Veteran subsequently requested an additional Board hearing. In February 2003, the Veteran testified during a hearing before the undersigned VLJ in Washington, D.C. A transcript of the hearing is associated with the claims file. In June 2003, the Board, inter alia, remanded the claims for service connection for degenerative disc disease of the hips and multiple joint arthralgias for further action, to include additional development of the evidence. In a September 2007 rating decision, the RO, inter alia, denied the Veteran's claim for service connection for PTSD. In January 2008, the Veteran testified during a Board hearing before the undersigned VLJ in Washington, D.C. A transcript of the hearing is associated with the claims file. In April 2008, the Board, inter alia, remanded the claims for service connection for degenerative disc disease of the hips and multiple joint arthralgia, to include additional development of the evidence. In August 2012, the Veteran again testified during a Board hearing before the undersigned VLJ in Washington, D.C. A hearing transcript of the hearing is associated with the claims file. In February 2013, the Board, inter alia, recharacterized the claim for service connection for PTSD and petition to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD to comport with the Veteran's assertions during his August 2012 hearing testimony. The Board then remanded the petition to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD as well as the claims for service connection for PTSD, hip complaints and multiple joint arthralgia, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claims (as reflected in a June 2013 supplemental statement of the case (SSOC)), and returned these matters to the Board for further appellate consideration. Also in June 2013, the AMC, inter alia, granted the Veteran's claim for service connection for multiple joint arthralgia (i.e. right and left ankle disorders as well as right and left knee disorders) and awarded initial ratings for each such disability. Those awards represent a full grant of the benefits sought with respect to the issue of service connection for multiple joint arthralgia. As such, and since the Veteran has not expressed any disagreement with the June 2013 rating action, this issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals VA treatment records dated through March 2013; such records were considered in the June 2013 SSOC. The Board's decision as to the claim for service connection for PTSD is below. The petition to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD, as well as the claim for service connection for hip complaints/disability are addressed in the remand following the order; these matters are being remanded to the RO, via the AMC, in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although medical evidence indicates that the Veteran has displayed some PTSD symptoms, and the record includes an assessment of PTSD, the most persuasive medical opinion on the question of diagnosis establishes that the Veteran does not meet the diagnostic criteria for PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a December 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for PTSD. This letter provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. In addition, an April 2013 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the above-described notice, the June 2013 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the April 2013 letter. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient and private records and the reports of VA examinations, as requested by the Board in its February 2013 remand, as well as the Veteran's service personnel records. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also notes the May 2013 RO Memorandum which made a formal finding of unavailability of unit records from the 267th Quartermaster Company. Finally, there are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim for service connection, prior to appellate consideration, is required. The Board points out that that the Veteran was provided the opportunity to orally set forth his contentions during his hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2012 hearing, the undersigned enumerated the issues then on appeal, which included service connection for PTSD. The Veteran provided testimony regarding his psychiatric symptoms and his current diagnosed disabilities. The hearing transcript also reflects appropriate exchanges between the Veteran, his representative, and the undersigned pertaining to the Veteran's current treatment and the bases for denial of the claim. In response to the Veteran's testimony, the Board recharacterized the issue on appeal to include a petition to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD and remanded the issues for further development. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends that he suffers from PTSD as a result of service, specifically the SCUD missile attacks he experienced while serving in Saudi Arabia. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether the Veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C.A. 1154(b). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. In this case, as explained below, the Veteran has not met the first essential criterion for service connection for PTSD--medical diagnosis of the disorder in accordance with the applicable diagnostic criteria. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition as set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). The Veteran's service treatment records are negative for any psychiatric complaints, findings, or diagnoses. His service personnel records show that he served in Saudi Arabia from October 1990 to July 1991, that he was attached to the 267th Quartermaster Company and that he did not receive any medals indicative of combat. Further, an April 2013 RO Memorandum indicated that the Veteran's unit had been subjected to Iraqi SCUD missile attacks during his tenure in Saudi Arabia, and that his reported stressor (i.e., involvement in SCUD missile attacks) had therefore been conceded. Post-service, an October 2012 psychological opinion from Dr. T. T. indicated that the Veteran had taken the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test. The results of this testing were noted to reveal that the Veteran was experiencing depressive symptoms, anxiety and stress on a higher than normal scores of the clinical scales. The provider noted that the combination of these psychological symptoms can also be encompassed by a diagnosis of PTSD and that the Veteran's PTSD sub-score on self-report showed higher than normal scores. The provider opined that, based on the self-report and clinical information supplied by the Veteran, PTSD was a more viable differential diagnosis than depression and the detailed the criteria for PTSD under the DSM-IV. With regards to exposure to a traumatic event, the provider noted that the Veteran had been at risk for serious injury or death based on his military history and that the Veteran had experienced intense fear when he heard sounds that resembled SCUD missiles exploding. The provider further noted that the Veteran had reported experiencing flashbacks at times as well as distressing dreams, that he had an increased startle response, that he had been experiencing these symptoms for more than a month and that he felt that areas in his life were impaired by it. In contrast, the May 2013 VA examiner opined that while the Veteran had reported a stressor of hearing incoming SCUD missiles, he did not display the full criteria to meet the diagnosis of PTSD nor did he report any significant impairment in his social or occupational functioning other than issues with irritability, lack of motivation and depressed mood. In reference to the October 2012 psychological opinion, the examiner noted that the private psychologist did not indicate the level of impairment the self-reported PTSD had caused the Veteran. Specifically, while the private provider noted that PTSD symptoms must lead to clinically significant distress or impairment of major domains of life activity (such as social relations, occupational activities or other important areas of functioning), the provider did not elaborate on how the Veteran met this diagnostic criteria. The examiner opined that the Veteran's predominate symptomology remained depressed mood, which the Veteran had reported to be related to job stressors and family issues related to his children, during his VA clinical evaluations. The examiner noted that the Veteran was currently working full-time, that he had been married since 1999, that he had raised two biological children and two step-children, that he owned his own home, that he did not drink and that he had not had any issues with the law. The examiner opined that based on this information, the Veteran did not meet the diagnostic criteria for significant impairment and that there was no evidence to show that the criteria for persistent avoidance and emotional numbing, both of which are necessary to support a diagnosis of PTSD. The above-cited evidence reflects that the record contains conflicting medical evidence on the question of whether the Veteran actually meets the diagnostic criteria for PTSD. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While an assessment of PTSD and notation of PTSD symptoms are reflected in the private evaluation report in October 2012, cited above, such assessment is not supported by clear, fact-specific rationale. Admittedly, the October 2012 private evaluation report reflects some discussion of the DSM-IV criteria; however, the private psychologist was not specific in explaining how the Veteran met each criterion, to include persistent avoidance and emotional numbing as well as significant impairments in functioning. The Board thus finds that, collectively, such evidence should be accorded less probative weight than the well-reasoned, thoroughly explained opinion of the May 2013 VA examiner. Clearly, the May 2013 VA examiner's conclusion that the Veteran fails to meet the criteria for a PTSD diagnosis was based on review of pertinent evidence in the claims file (including the private evaluation report dated in October 2012), as well as a detailed clinical interview of the Veteran, and the administration of psychological testing, and the examiner provided a specific discussion of the DSM-IV criteria, as it applies to the Veteran, in the examination report. See Hernandez-Toyens, 11 Vet. App. at 383; Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). Accordingly, the Board is according the opinion of the May 2013 examiner-reached after such comprehensive testing and interview, records review and discussion of the criteria for diagnosing PTSD--great probative weight on the question of whether the DSM-IV criteria for a diagnosis of PTSD are actually met. As a final point, the Board acknowledges the decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In that decision, the U.S. Court of Appeals for Veterans Claims (Court) held that the Board erred in not considering the scope of the Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In other words, VA must consider any psychiatric diagnosis raised by the record. Here, the Board notes that the claim for service connection for an acquired psychiatric disorder other than PTSD has been remanded herein for additional development and therefore need not be addressed with regards to the instant claim. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent, persuasive evidence establishes that the Veteran does not have the disability for which service connection is sought), there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, as regards to any direct assertions by the Veteran attempting to establish that he currently has PTSD on the basis of lay assertions, alone, the Board finds that such assertions provide no basis for allowance of the claim. The matter of current diagnosis of PTSD are within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than layperson without appropriate training and expertise, he is not competent to render a probative opinion on the medical matters on which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127(1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for PTSD must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for PTSD is denied. REMAND The Board's review of the claims file reveals that further RO action on the remaining claims on appeal is warranted. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271(1998). First, with regards to the petition to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD, the Board had previously detailed the notice required for such a claim. Specifically, a claimant must be notified of both the criteria to reopen a claim for service connection-to include a discussion of the basis/es for the prior denial-as well as the criteria for establishing the underlying claim for service connection in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006). In the February 2013 remand, the Board noted that the Veteran had not been provided notice of the general requirements for reopening a previously denied claim. See 38 C.F.R. §§ 3.104, 20.1100. In response to the Board's February 2013 remand directives, the Veteran was provided additional notice in April 2013. Unfortunately, this notice was incorrect, as it stated that the Veteran's claim for service connection for an acquired psychiatric disorder had been denied in a January 2000 rating decision as the objective evidence of then of record did not show a current disability. However, a review of the claims file indicates that the Veteran's claim for depression NOS had also been denied in a June 1998 rating decision as the evidence then of record did not show a nexus between such a disability and service. The Board notes that post-service clinical evidence shows assessments of depressive disorder NOS. On remand, proper notice should be provided to the Veteran. With regards to the Veteran's claimed right hip disorder, the Board's February 2013 remand directives indicated that a Gulf War examination was to be conducted to determine whether the Veteran's right hip symptoms were attributable to a diagnosed disability. If these symptoms were found to be attributable to a known clinical diagnosis, an opinion as whether such a disability was related to service, or was caused or aggravated by a service-connected disability, was to be provided. Such an opinion was obtained in May 2013. The examiner diagnosed right hip degenerative joint disease and offered an etiological opinion as to direct service connection only; an opinion as to aggravation was not provided. Accordingly, the RO should forward the claims file to the examiner who had evaluated the Veteran in May 2013 and completed the accompanying DBQ for an addendum opinion. The RO should only arrange for further examination of the Veteran if the prior examiner is unavailable or if further examination of the Veteran is deemed necessary. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. While this matter is on remand, to ensure that the record is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As for VA records, the claims file reflects that the Veteran has been receiving treatment for his various disabilities from the VA Medical Center (VAMC) in Baltimore, Maryland and that records from that facility dated through March 2013 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain all records of pertinent treatment from the Baltimore VAMC (since February 2013) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. In addition, the Board notes that the Veteran reported seeing an outside psychiatrist to treat his depression in October 2012 but it is not clear if the Veteran was referring to treatment outside of the October 2012 psychological evaluation that had been previously discussed. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish an updated authorization to enable it to obtain, private treatment records from a private psychologist, from whom the Veteran has identified as receiving treatment for his depression. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claims should include consideration of all additional evidence added to the record since the last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Baltimore VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran related to his right hip and an acquired psychiatric disorder other than PTSD (to include depression), dated since March 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records, to include any records from a private psychologist. This letter must explain what type of evidence is needed to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, providing notice as to the reason for the prior denial of the claim (i.e. lack of nexus between a current disability and service), and specifically and precisely addressing the element(s) required to establish service connection that was/were found insufficient in the previous denial of the claim, as required by Kent (cited above). Also clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, to the examiner who provided the May 2013 opinion for an addendum opinion. The entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For the diagnosed right hip degenerative joint disease, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service; or, if not, was caused or is aggravated by service-connected disability. If aggravation of a nonservice-connected condition by a service-connected disability is found, the examining physician should attempt to quantify the degree of additional disability resulting from such aggravation. The examiner should also state whether it was manifested to a compensable degree within one year of service discharge (i.e. January 1993). In rendering the requested opinion, the examiner should specifically consider and discuss the service treatment records and post-service treatment records. If the examiner who provided the May 2013 opinion is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, document that fact in the claims file, and arrange for the Veteran to undergo another VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinion responsive to the question and comments noted above. The examiner should set forth all examination findings (if any), along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs