Citation Nr: 1340508 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-06 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Guam Office of Veterans Affairs ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1970 to March 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which, in relevant part, denied service connection for PTSD. The Board remanded this case in March 2012, March 2013, and July 2013 for additional development. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim for service connection for a mental 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. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board previously recharacterized the appeal to encompass any acquired psychiatric disorder to conform to Clemons. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA"/VBMS system to insure a total review of the evidence. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. In March 2012, the Board remanded the claim, in part, to provide the Veteran with a VA examination. In March 2013 and again in July 2013, the Board remanded the claim to obtain outstanding treatment records and obtain an adequate medical opinion. First, remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain private medical records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(1) (2013). Such reasonable efforts generally include an initial request and, if the records are not received, at least one follow-up request, unless a response indicates that the records sought do not exist or that a follow-up request for the records would be futile. 38 C.F.R. § 3.159(c)(1). If, however, VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source. 38 C.F.R. § 3.159(c)(1). Here, in April 2013, the Veteran submitted a completed VA Form 21-4142 Authorization for Release of Information to have the AMC obtain records from the Vet Center located in Guam for counseling between January 2007 and December 2012. In the March and July 2013 remands, the Board requested that these records be obtained. In August 2013, the AMC sent a request for records relating to treatment for PTSD from January 2007 through December 2012 to the Guam Vet Center. The record does not indicate that the AMC send a follow-up request to, or received a negative response from, the Guam Vet Center. The Board finds that an additional request to attempt to obtain records dated January 2007 through December 2012 from the Guam Vet Center is required to comply with VA's duty to assist. Accordingly, remand is required to attempt to obtain medical records from the Guam Vet Center. The Board also remanded in July 2013 to obtain an updated opinion to the March 2012 VA examination and May 2013 addendum opinion regarding a 2007 diagnosis of depression. The record does not reflect that the requested addendum opinion has been obtained. As noted in the July 2013 Board remand, the May 2013 addendum opinion is inadequate because it was based on an incomplete record, as the VA examination offered the opinion on the basis of the claims file record that is missing the Vet Center records. Once the outstanding Guam Vet Center treatment records are obtained, a supplemental opinion should be requested. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's mental health treatment records from the Guam Vet Center for the period of January 2007 to December 2012 using the VA Form 21-4142 received in April 2013. All information obtained must be made part of the claims file. All attempts to secure this evidence should be documented in the claims file by the AMC. If, after making reasonable efforts to obtain the Guam Vet Center records the AMC is unable to secure same, the AMC should notify the Veteran and his representative and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; and (c) describe any further action to be taken by the AMC with respect to the claim. The Veteran should then be given an opportunity to respond. 2. Once the above evidence has been obtained, or after reasonable efforts have been made to obtain the above records has been documented in the claims file, arrange for the Veteran's claims file, including a copy of this remand, to be reviewed by the VA examiner who prepared the March 2013 VA addendum opinion (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum to the examination report regarding the claimed psychiatric disorders. The examiner should render an opinion as to whether an Axis I psychiatric diagnosis is identified at any time since February 2004 (when the Veteran submitted his claim) and whether it is at least as likely as not (50 percent or greater likelihood) that an Axis I psychiatric disorder, to include depressive disorder, not otherwise specified (NOS) first indicated to be diagnosed in 2007, was incurred in or otherwise caused by the Veteran's military service, even though the March 2012 VA examination report indicates that the Veteran no longer meets the diagnostic criteria for a depressive disorder NOS. The examiner should provide a clear rationale and basis for all opinions expressed. 3. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. 2013). _________________________________________________ K.J. ALIBRANDO 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).