Citation Nr: 1338222 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-17 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include major depression, anxiety, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to December 1972. This matter comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for PTSD. A notice of disagreement was filed in August 2009, a statement of the case was issued in March 2010, and a substantive appeal was received in April 2010. The Veteran testified at a Board hearing in January 2013; the transcript is of record. The United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). Thus, the Board will also consider entitlement to service connection for an acquired psychiatric disorder, to include PTSD, hence the recharacterization of the issue hereinabove. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran testified that he sought mental health treatment from a private physician in August 1998. Records of this treatment have not been obtained. VA has a duty to obtain those records. 38 C.F.R. § 3.159(c)(1) (2013). The Veteran also testified that a VA treatment provider had told him that he had anxiety related to the in-service assault. The Veteran was under the impression that such a statement was of record, but it does not appear in the claims file. VA has a duty to advise the Veteran to obtain such a statement. Robinette v. Brown, 8 Vet .App. 69 (1995). At the Board hearing, the Veteran testified that he has sought mental health treatment at the VA Medical Centers (VAMCs) in Dallas, Texas and Fort Worth, Texas. The Veteran's treatment records must be associated with the claims folder or Virtual VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). In April 2012, the Veteran underwent a VA examination. The examiner diagnosed anxiety and major depression, but concluded that he did not meet the criteria for PTSD. The examiner, did not provide a specific opinion as to whether there was evidence of any behavior changes in response to the stressor, although some potential changes were considered. Cf. 38 C.F.R. § 3.304(f)(5) (2013). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to complete a release (VA Form 21-4142) for VA to obtain records of the private mental health treatment that reportedly took place in 1998, and any other private medical providers who have provided mental health treatment. 2. Associate with the claims folder or Virtual VA treatment records from the Dallas and Fort Worth VAMCs. 3. Ask the Veteran to submit a supporting statement from the VA treatment provider who told him that he had anxiety related to the in-service assault. 4. If any requested records cannot be obtained, advise the Veteran of the missing records, the efforts made to obtain the records, and what further action will be taken. 5. Thereafter, schedule the Veteran for a VA examination to determine whether any current psychiatric disability is related to service. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should consider the report of in-service treatment for nervousness at work, and rectal bleeding (reportedly related to hemorrhoids) reported after the June 1970 military sexual assault. The examiner should provide an opinion as to the following: a) Whether the Veteran has met the criteria for a diagnosis of PTSD at any time since approximately July 2008; b) Whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that anxiety is a result of service or any incident therein, to include the reported military sexual trauma; c) Whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that major depression is a result of service or any incident therein, to include the reported military sexual trauma. d) Whether there is evidence of behavior changes (in service or since) in response to the reported military sexual trauma. The examiner should provide reasons for these opinions. If opinions cannot be rendered without resorting to speculation as to the etiology of his PTSD or any other psychiatric disability, the examiner should discuss in detail why an opinion cannot be offered. 6. If the appeal is not fully granted, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if otherwise in order. The Veteran and his representative have 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). _________________________________________________ Mark D. Hindin 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).