Citation Nr: 1336260 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-40 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1972 to August 1973. This appeal arose before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Togus, Maine, Department of Veterans Affairs (VA), Regional Office (RO). The Veteran testified before the undersigned via Video Conference hearing in April 2011. A transcript of this hearing has been included in the claims folder. The Board notes that the RO had denied entitlement to service connection for a nervous condition in January 1995. At that time, it was noted that the schizoid personality disorder diagnosed in service was a constitutional or developmental abnormality for which service connection was not available; therefore, this disorder was not related to the then-diagnosed depression. In April 2009, he filed a claim for service connection for a psychiatric disorder, to include PTSD secondary to an inservice personal assault. The Board finds that this claim does not have the same factual basis as the prior claim. He has alleged that his current psychiatric disorder began in service, arguing that the complaints in service were not evidence of a personality disorder; rather, they were early symptoms of his current disorder. Additionally, he has asserted that he has PTSD directly related to a personal assault. These are clearly factual bases different from those presented at the time of his prior claim. Therefore, he is opening a new claim, not reopening his prior claim. As a consequence, the new and material evidence requirement of 38 U.S.C.A. § 5108 is inapplicable. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Therefore, the issue is as characterized on the title page. 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 During his April 2011 hearing, the Veteran testified that he has been receiving continuing treatment from his VA psychiatrist and psychotherapist. However, the last treatment records on file date from August 2008. Records of pertinent ongoing VA treatment should be obtained and associated either with his claims folder or with his Virtual VA eFolder. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (which found that VA records are considered part of the record on appeal since they are within VA's constructive possession). After carefully reviewing the evidence of record, the Board has determined that the report of the VA examination conducted in August 2009, and the report of opinion clarification dated in July 2010, do not provide an adequate basis upon which to determine entitlement to the benefit sought. See Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(c)(4) (2012). Therefore, another examination is needed. Accordingly, the case is REMANDED for the following action: 1. Contact the Togus, Maine VA Medical Center's Mental Health Clinic and request all treatment records dated from August 2010 to the present. Records from both the Veteran's psychiatrist (Dr. M. S.) and his psychotherapist (Social Worker K. R.) must be requested. All attempts to obtain these records must be documented in the claims folder. Efforts to obtain these records will only cease if it is determined that the records do not exist or that further attempts to obtain them would be futile. If the records could not be located, the Veteran must be provided notice of this fact. This notice must (i) identify the records VA was unable to obtain; (ii) explain the efforts made to obtain the records; (iii) provide a description of any further attempts VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits copies of the records VA was unable to obtain; and (iv) contain notice that the Veteran is ultimately responsible for the providing the evidence. 2. Once the above-requested development has been completed to the extent possible, afford the Veteran a complete VA psychiatric examination by a qualified physician. The following must be answered/addressed: a) What is the current psychiatric diagnosis, based upon a review of the entire claims folder, to include the service treatment records, the service personnel records, treatment records and examinations, and the Veteran's personal statements? b) Did the Veteran suffer from a personality disorder in service or were the symptoms noted in service an early manifestation of any currently diagnosed psychiatric disorder? (c) If the symptoms in service are found to be an early manifestation of any currently diagnosed psychiatric disorder, is there clear and unmistakable evidence that such preexisted service, particularly based upon his behavior (such as truancy and difficulties with legal authorities) noted prior to service, evidence of which can be found in the service treatment records? (d) If a psychiatric disorder is found to have preexisted service, is there clear and unmistakable evidence that it was not aggravated by service? (e) The examiner must review the Veteran's service treatment and personnel records and render an opinion as to whether any noted behavior changes (to include, but not limited to, periods of AWOL, decrease in work performance, substance abuse, unexplained economic or social behavior changes) are consistent with the occurrence of a personal assault in service. (f) If the examiner opines that it is likely that a personal assault as reported by the Veteran occurred in service, the examiner must then opine whether the Veteran suffers from PTSD and whether the verified stressor was sufficient to cause PTSD. The examiner must provide a complete rationale for all opinions proffered. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. See Jones. Shinseki, 23 Vet. App. 382 (2010). 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences of failing to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. The Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD must then be readjudicated. If the decision remains adverse to the Veteran, he and his representative must be provided a Supplemental Statement of the Case and an opportunity to respond. The case must then be returned to the Board for further appellate consideration, if otherwise in order. 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. 2012). _________________________________________________ DENNIS F. CHIAPPETTA 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).