Citation Nr: 1336644 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-32 284A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and chronic paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from June 1982 to October 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran submitted a Notice of Disagreement (NOD) with this determination in March 2009, and perfected his appeal in September 2009. Although the RO framed the issue on appeal as entitlement to service connection for PTSD, a review of the record indicates that the Veteran has also been diagnosed with depression, substance abuse, impulse-control disorder, and chronic paranoid schizophrenia. Recent case law mandates that a claim for a mental health disability 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board has recharacterized the issue of entitlement to service connection for PTSD to the broader issue of entitlement of service connection for an acquired psychiatric disorder, as is reflected on the cover page. See Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005), Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveal that there are additional VA treatment records related to the Veteran's claim on appeal. These records have been reviewed and considered by the Board. 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 After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the claim of service connection for an acquired psychiatric disorder. The Veteran contends that he has an acquired psychiatric disorder due to his military experiences. He reported having such symptoms of flashbacks, nightmares, and never feeling relaxed due to his nerves. Service records contain November 1983 Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) forms, which note that the Veteran had problems with alcohol. In conjunction with the May 1984 discharge examination, the Veteran noted on his Report of Medical History that he had frequent trouble sleeping and nervous trouble of any sort. A Report of Mental Health Status Evaluation dated May 1984 stated that the Veteran was being considered for discharge due to misconduct. His behavior was listed as normal, fully alert, fully oriented, unremarkable mood or affect, clear thinking process, normal thought content, and good memory. He was also noted to have the mental capacity to understand and participate in the proceedings and was mentally responsible. The Board notes that, effective July 13, 2010, the regulations governing service connection for PTSD were amended to relax the adjudicative evidentiary requirements for determining what happened in service where the Veteran's claimed stressor is related to "a fear of hostile military or terrorist activity during service." Specifically, the new 38 C.F.R. § 3.304(f)(3) provides that, if a stressor claimed by a Veteran is "related to the Veteran's fear of hostile military or terrorist activity," and a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted), confirms that the claimed stressor is 1) adequate to support a diagnosis of PTSD, and 2) that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Moreover, the amendment provides that, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. VA treatment records show that the Veteran was in a PTSD and substance abuse program from October 2012 to January 2013. Additionally, VA treatment records show diagnoses and treatment for depression, PTSD, substance abuse, impulse-control disorder, and chronic paranoid schizophrenia. A February 2010 VA record noted that the Veteran was at the Mental Health Clinic requesting admission for homicidal ideations. He reported that he had been having dreams about the dead people he used to pick up when he was in the military. When he had those dreams it made him think about killing the people he used to work with at the Board of Education. He also reported hearing voices telling him to go get them. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although the Veteran reported nervous trouble and sleep trouble at discharge, and VA treatment records show that the Veteran is currently being treated for multiple acquired psychiatric disabilities, the VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's acquired psychiatric disorder. A medical opinion regarding a diagnosis and etiology of the Veteran's acquired psychiatric disorder is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the claims file contains an August 2010 statement from the Veteran where he reported that he would send in his VA treatment records for his claim for SSI. It is unclear from his statement if he is in receipt of disability benefits from Social Security Administration (SSA). Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); Voerth v. West, 13 Vet. App. 117 (1999); Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, on remand, further development to determine if the Veteran is in receipt of such benefits, and if so, to obtain the Veteran's complete SSA record, is warranted. Accordingly, the case is REMANDED for the following action: 1) Ensure that all VA treatment records are up to date. 2) Request, from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3) After the foregoing, schedule the Veteran for a VA examination to determine whether any acquired psychiatric disorder, to include PTSD, depression, substance abuse, impulse-control disorder, or chronic paranoid schizophrenia, is related to the Veteran's service. The claims file and a copy of this remand must be made available to the examiner for review. All indicated testing should be conducted. The examiner should address the following: A. Please identify all of the Veteran's psychiatric diagnoses. Specifically state whether the Veteran has a current diagnosis of PTSD. B. If a diagnosis of PTSD is appropriate: The examiner should specify (1) whether the alleged stressor in the examiner's opinion was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and the in-service stressor sufficient to produce PTSD. C. If the examination results in a psychiatric diagnosis other than PTSD: The examiner should offer an opinion as to the etiology of each non-PTSD psychiatric disorder, to include whether it is at least as likely as not (at least a 50-50 probability) that any currently demonstrated psychiatric disorder, other than PTSD, had its onset during active service or is related to any in-service disease, event, or injury. When providing these opinions, the examiner should consider and discuss the Veteran's service records (referenced above), VA treatment records, lay statements, and any other relevant information. Additionally, the examiner should also discuss the Veteran's lay statements regarding the onset and duration of psychiatric symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO should readjudicate the Veteran's claim. The RO should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).