Citation Nr: 1339337 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 06-26 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary-Caitlin Ray, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 until April 1992, including a tour of duty in the Persian Gulf. The Veteran had subsequent service in the Army National Guard of Puerto Rico from August 1993 until December 1999. This matter comes before the Board of Veterans Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In July 2012, the Board remanded the appeal for further development, specifically for a new VA examination to determine the etiology of the Veterans acquired psychiatric disorder. 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 Regrettably, the Board finds that further development is needed to adjudicate this claim. From a review of the Veteran's claims file, it is clear that evidence is missing from the record. An August 2013 VA correspondence shows that the Veteran's file went missing after the July 2012 Board decision. PIES requests and Records Management Center (RMC) requests were negative. As a result, the Veteran's service treatment records and all evidence associated with his claims, with the exception of Social Security Administration disability records, are missing prior to July 2012. An exhaustive search must be performed in order to locate these missing records. Next, in the July 2012 remand, the Board requested that the RO afford the Veteran a VA examination to ascertain the nature and etiology of any psychiatric disability, including depression and PTSD. The examiner was specifically asked to comment on whether the Veteran has a diagnosis of PTSD and, if so, to comment upon the link between the current symptomatology and the in-service stressors reported by the Veteran. Accordingly, the RO scheduled the Veteran for a VA psychiatric examination in August 2012. The clinic canceled that examination, citing unavailability of the Veteran's claims file. Subsequently, an undated medical opinion from obtained from an AMC medical consultant (who appears to be a Family/General Practitioner). The consultant's report indicates that he reviewed the reconstructed claims file, including a June 2013 VA treatment record reflecting a diagnosis of chronic PTSD, as well as the June 2010 VA examination that prompted the Board to remand the claim in July 2012. He opined that he was unable to provide an opinion as to whether the Veteran has PTSD meeting the DSM-IV or V criteria as a result of any in-service claimed event without resorting to mere speculation. In his rationale, the consultant cites both the inadequate June 2010 VA examination and the June 2013 VA treatment record. He states that the June 2013 VA treatment record does not identify a stressor, and he concludes that more development in the form of a new VA examination is needed in order to provide a comprehensive medical opinion. There is no indication that a VA examination of the Veteran was conducted as clearly required under the Board's July 2012 directives. In light of this deficiency, undated AMC medical opinion fails to comply with the Board's July 2012 remand directives and is inadequate to decide the claim. Thus, the RO should afford the Veteran a VA examination for an acquired psychiatric disorder, to include PTSD and depression, in compliance with the July 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, the evidence of record includes numerous documents in Spanish, including medical records. There are no translations of any of these documents associated with the claims file. Accordingly, the Board is unable to determine whether they contain relevant information. Translations of all of these documents must therefore be obtained while the Veteran's claim is on remand. Accordingly, the case is REMANDED for the following actions: 1. An exhaustive search must be conducted to locate the Veteran's missing claims file, which contains his service treatment records, as well as any other evidence prior to the July 2012 Board decision. A record of all attempts made to locate this missing evidence should be associated with the Veteran's current claims file. 2. Translate all Spanish documents in the claims file, and include those translations in the claims file. 3. After the above has been accomplished, schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may exist, such as PTSD or depression. The claims file (if recovered), to include a copy of this remand, should be made available to and reviewed by the examiner. The examination must be conducted regardless as to whether or not the complete claims file is recovered. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the Veteran has PTSD meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran's PTSD is the result of any in-service claimed event. In doing so, the VA examiner should determine whether the claimed stressor is related to his fear of hostile military or terrorist activity. The VA examiner should confirm whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). For the purposes of this paragraph, "fear of hostile military 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 thread 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. If a psychiatric disorder other than PTSD is diagnosed, the examiner should provide an opinion as to whether it is as likely as not that the psychiatric disorder had its onset in service or is otherwise etiologically related to his active service, to include an in-service stressor. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she will provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above, readjudicate the claim. If any benefit sought on appeal remained denied, the Veteran and his representative should be provided an SSOC and given an opportunity to respond. 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). _________________________________________________ MICHAEL A. HERMAN 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).