Citation Nr: 1336308 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 12-11 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and major depressive disorder. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to August 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied service connection for PTSD, anxiety disorder, and major depressive disorder. In his May 2012 VA Form 9, the Veteran requested a Board hearing by live videoconference. Subsequently, in a January 2013 letter, the Veteran withdrew his request for a hearing. The Board is obligated to construe a claim for an acquired psychiatric disorder liberally, and thus, the claim has been broadly construed to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes 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 April 2013, the Veteran submitted a Social Security Administration (SSA) Notice of Decision, along with a waiver of initial RO consideration. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Board finds it necessary to remand the claims on appeal to the AOJ for additional development and to ensure due process to the Veteran. In a November 2012 decision, the SSA awarded the Veteran disability insurance benefits having determined that the Veteran was disabled since January 2009. There is no indication that the AOJ has attempted to obtain the Veteran's complete SSA file. Among the evidence submitted in April 2013 is a SSA award decision dated in November 2012. The records used to render that decision are not of record. A remand is therefore necessary to obtain any SSA determination and records associated with this decision. Once VA is put on notice that the Veteran is in receipt of SSA benefits, VA has a duty to obtain the records associated with that decision. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Additionally there appears to be outstanding VA and private medical records; the SSA disability decision refers to VA treatment records of the Veteran including progress notes reported in March 2007, July 2007, and March 2011, that have not yet been associated with the claims file. There is no indication that the AOJ has attempted to obtain these files which are necessary for the Board's determination. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA treatment records are in the constructive possession of the agency, and must be obtained if material to a claim); see also Veterans Benefits Administration Fast Letter 11-28 (outlining revised procedures related to electronic records). Furthermore, the SSA disability decision noted that the Veteran saw a private psychiatrist every three months for medication. Similarly, these records are not in the claims file. The SSA decision also reflects that Veteran underwent state psychiatric review in January and March 2011, which are not contained in the claims folder. A state mental residual functional capacity assessment in March 2011 is also missing from the claims file. The Board finds further that a VA psychological examination is warranted to determine the etiology of any currently diagnosed psychiatric disability. The nature and circumstances of any and all events that led to this evaluation should be associated with the Veteran's claims file. In a claim for service connection, VA's duty to assist the Veteran includes providing a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/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 Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). In light of the records referenced by the SSA, it appears that the Veteran is currently diagnosed with a psychiatric disability. The STRs of record show no psychological complaints, treatment, or diagnoses. However, the Board observes that the Veteran underwent a July 1973 mental health evaluation, in service, and the reason for such examination is not known. Accordingly, the case is REMANDED for the following actions: 1. Contact the SSA, request and obtain the Veteran's complete Social Security records, including all decisions and any medical records relied upon in making those decisions. 2. The RO should obtain all psychological medical records pertaining to the Veteran from the VAMC in Dayton, to include Pembroke Pines CBOC, from July 2011 onward. 3. The RO should contact the Veteran and ask him to identify all private medical records pertaining to the claim. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 4. The RO should send the Veteran a letter givng him one more opportunity to provide further clarifying information, narrowing the dates, locations, names of other persons involved, etc. relating to his claimed stressor of witnessing his best friend dying in his arms during service. 5. If the Veteran provides an additional stressoe, the RO should then prepare a summary of the PTSD stressor addressed in 3. above. The summary and all associated documents should then be sent to the Joint Services Records Research Center (JSRRC), National Archives and Records Administration (NARA), and/or other record custodian(s) to attempt to corroborate the Veteran's claimed stressor(s). 6. AFTER the above has been completed to the extent possible, the RO should schedule the Veteran for a VA psychiatric examination, to be conducted by a VA psychologist or psychiatrist, to determine the identity and etiology of any psychiatric disorder that may be present to include PTSD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for PTSD and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to respond to the following: a. Indicate whether the Veteran meets the criteria for PTSD and if so, please explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis, to include the Veteran's reported stressor of his best friend dying in his arms in service, or any other possible stressor is sufficient to cause his symptoms, as well as whether his PTSD diagnosis is related to his reported stressor. b. If the Veteran is diagnosed with a psychiatric disorder other than PTSD, to include anxiety and depression, then the examiner should provide an opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater probability) that any such psychiatric disorder is related to active military service. Reconcile any opinion with the Veteran's STRs, particularly to include the July 1973 mental health evaluation report. The examiner is asked to review and discuss the lay statements from the Veteran in the claims file and during the examination and the medical evidence of record to include the VA medical records. The examiner should provide an explanation for all conclusions reached. 7. Thereafter, the RO should readjudicate the service connection claim. If the benefits sought on appeal remain denied in any respect, the appellant and his attorney should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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. 2013). _________________________________________________ MILO H. HAWLEY 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).