Citation Nr: 1338870 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-28 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that the RO originally adjudicated the issue as entitlement to service connection for PTSD. However, the United States Court of Appeals for Veterans Claims has held 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the issue as shown on the first page of this decision. 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 claim. A review of the Virtual VA claims file reveals the Veteran's representative's October 2013 Written Brief Presentation. The remainder of the documents in the Virtual VA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). As an initial matter, the Board notes that additional service treatment records appear to have been associated with the claims file subsequent to the issuance of the March 2009 and July 2009. Specifically, it appears that a complete copy of his service treatment records had been associated with another Veteran's claims file and were forwarded to the Board after certification and transfer of the case. Additionally, the newly associated service treatment records include a June 1967 neuropsychiatric evaluation note from Parris Island, South Carolina, and a March 1970 neuropsychiatric evaluation by U.S. Naval Disciplinary Command in New Hampshire. Therefore, as such are relevant to the Veteran's claim for service connection for an acquired psychiatric disorder, the newly received service treatment records should be considered by the agency of original jurisdiction (AOJ) in the readjudication of the Veteran's case. Furthermore, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his acquired psychiatric disorder. In this regard, the Board observes that the Veteran was previously examined by VA in February 2009. At such time, the examiner determined that the Veteran did not have fully diagnosable PTSD based on the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). However, it does not appear that the examiner considered all relevant information in offering his opinion. Specifically, the examiner indicated that he reviewed the Veteran's claims file, personal stressor statement, and treatment notes, and there were no documents of a mental health or psychiatric nature noted in the Veteran's record, and no reference of PTSD in any treatment notes he could find. However, as indicated in the preceding paragraph, additional service treatment records that included neuropsychiatric evaluations were subsequently associated with the claims file. Therefore, the Board finds that the Veteran should be afforded another VA examination. In addition, the Veteran indicated in his December 2008 claim form that he sought treatment for PTSD at the "Boston Charleston Naval Shipyard" when he returned from Vietnam. It is not clear whether he sought treatment from such facility while he was still in service as he returned from Vietnam in May 1969 and remained on active duty until June 1970, or after he was discharged. Therefore, the Veteran should be afforded an opportunity to identify any VA or non-VA healthcare provider who has treated him for any acquired psychiatric disorder, to include PTSD, during or since service. Thereafter, all identified records, to include those from the Boston Charlestown Naval Shipyard and VA Healthcare Network in Upstate New York dated from February 2009 to the present, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for an acquired psychiatric disorder, to include PTSD, during or since service, to include records from the Boston Charlestown Naval Shipyard. After securing any necessary authorization from him, obtain all identified treatment records, to include those from the Boston Charlestown Naval Shipyard and the VA Healthcare Network in Upstate New York dated from February 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the DSM-IV criteria. The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of a verified in-service stressor. In this regard, the examiner is advised that the Veteran's his fear of hostile or terrorist activity consistent with his assignment with a unit that sustained enemy fire is considered verified. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that such disorder is related to the Veteran's military service, to include his fear of hostile or terrorist activity consistent with his assignment with a unit that sustained enemy fire. In offering any opinion, the examiner must consider and discuss the June 1967 neuropsychiatric evaluation note from Parris Island, South Carolina, and the March 1970 neuropsychiatric evaluation by U.S. Naval Disciplinary Command in New Hampshire. The examiner should also consider the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include the service treatment records received subsequent to the issuance of the July 2009 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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 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). _________________________________________________ A. JAEGER 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) (2013).