Citation Nr: 1340633 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 12-23 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney ATTORNEY FOR THE BOARD A. Ozger, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1987 to June 1988, with over three years of unverified service prior to 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Recharacterization of an Issue on Appeal The Board notes that the Veteran originally filed a claim of entitlement to service connection for PTSD. The medical evidence of record indicates, however, that while the Veteran was not diagnosed with PTSD, he has been diagnosed with schizoaffective disorder, and with psychosis, not otherwise specified (NOS). Therefore, although not claimed by the Veteran, the appeal is broadened from the Veteran's original claim to include entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that a Veteran's claim for PTSD must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits in support of the claim). Although the Veteran requested a hearing in his substantive appeal, he later on withdrew his request in a June 2013 affidavit. A review of the Virtual VA processing system does not reveal any additional documents pertinent to the instant appeal. For the reasons expressed below, this appeal is being 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 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 Veteran's claims. When VA receives a complete or substantially complete application for benefits, VA is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claims, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2013). In addition, VA is required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). Under applicable law, a medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran claims that he has a right knee disability caused by a basketball game during service. Although the claims file does not show any current right knee disability, the Board notes that in an addendum dated August 2012 and filed with his VA-9, the Veteran makes a reference to a "medical opinion by treating VA physician Dr. Carol R. Prudhomme, MD who noted the Veteran suffered from intermittent knee pain and diagnosed arthralgia on April 7, 2011." See Addendum attached to Veteran's VA-9. The claims file does not include an April 7, 2011 opinion. Furthermore, it does not appear from the available evidence that any efforts have been made to obtain this record. Because such record, if obtained, might contain information bearing on the Veteran's appeal, specifically the existence of a right knee disability, efforts should be made to procure it. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). With regard to the issue of an acquired psychiatric disorder, to include PTSD, the Board notes that no VA examinations or medical opinions have been provided. In that vein, the Board notes that VA must provide the Veteran with a VA examination because the criteria under McLendon, supra, are met. See also 38 C.F.R. § 3.159(c)(4). The first element of McLendon, which is the evidence of a current disability, is met because the Veteran has been diagnosed with psychosis NOS and schizoaffective disorder in April 2008 and May 2008, respectively. Second, the Veteran's STRs include notes that the Veteran was seen by a mental health clinic in service. Although these notes show no diagnosis of a psychiatric disorder or a personality disorder, the Veteran claims that he was going through a mobility training exercise and "training for breathing during a nerve gas incident." The Veteran noted that he was having "bad nightmares about being exposed to a nerve gas attack," and had "major depression and mental episodes because of how [he] was discharged from the Air Force." The Board notes that the Veteran is competent to report that he began having nightmares, and mood changes. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disorder, or symptoms of a disorder, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, because the Veteran claims exposure to nerve gas training in service, the second element of McLendon is met. The third element is also met because the Veteran's STRs note a change in Veteran's behavior and attitude while in service, which may indicate that these changes may be related to the in-service nerve gas training. Finally, the fourth element is met because there is no medical opinion of record as to the etiology of the Veteran's acquired psychiatric disorders. Consequently, the Board finds that the claim must be remanded so that the AOJ can provide the Veteran with a VA medical examination and opinion. The agency of original jurisdiction (AOJ) last associated with the Veteran's claims file records of his treatment at the Mobile Outpatient Clinic from May 2008. On remand, efforts should be made to obtain records of any relevant VA treatment the Veteran may have undergone since that time, in order to ensure that his claims are adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of any other records pertaining to any relevant treatment the Veteran has received at any VA facility since May 2008, following the procedures set forth in 38 C.F.R. § 3.159. This should include any records regarding the Veteran's hospitalizations before May 2008 as referenced by the Veteran's niece in the April 30, 2008 psychology note. The evidence obtained, if any, should be associated with the claims file. Obtain specifically a copy of the medical opinion from the VA physician Dr. Carol R. Prudhomme, dated April 7, 2011, following the procedures set forth in 38 C.F.R. § 3.159. All requests and responses, positive and negative, should be associated with the claims file. 2. Ask the Veteran to provide a release for relevant records of treatment from any private care providers, to include any hospitalizations referenced by the Veteran's niece in the April 30, 2008 psychology note, from which he received treatment, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 3. After the foregoing developments have been completed to the extent possible, schedule the Veteran for a VA joints examination, with an appropriate expert, to determine the likely nature and etiology of the Veteran's alleged right knee disability. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) of the Veteran's right knee. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by service. A discussion of the Veteran's statements concerning his in-service injury and post-service progression of his right knee problems must be discussed. The examiner should set forth all examination findings, along with a complete rationale for the conclusions reached, in a printed (typewritten) report. 4. In addition to a joints examination, schedule the Veteran for a VA mental disorders examination, to include PTSD, with a VA psychiatrist or psychologist, to determine the likely nature and etiology of any diagnosed psychiatric disorder. The entire claims folder and a copy of this REMAND must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The VA examiner is requested to identify any psychiatric disorder, other than PTSD, currently experienced by the Veteran. Based on a review of the Veteran's claims file and the results of his mental status examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the VA examiner is requested to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed psychiatric disorder, other than PTSD, is related to active service or any incident of service. A complete rationale must be provided for any opinion expressed. With respect to PTSD, the VA examiner is requested to state whether the Veteran currently suffers from PTSD, consistent with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition of the American Psychiatric Association (DSM-IV). Thereafter, the VA examiner should state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran currently suffers from PTSD as a result of his time in active duty service. A complete rationale should be provided for any opinion expressed, and the stressor upon which any diagnoses of PTSD is made must be identified in detail. 5. 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 claims should be readjudicated based on the entirety of the evidence. If the claims remain 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. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ MARJORIE A. AUER 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).