Citation Nr: 1415573 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 11-12 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1974 to December 1975. This case came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision rendered by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2012, a hearing was held before the undersigned at the RO. The Veteran withdrew, in writing, his appeal of his claim of entitlement to service connection for a head injury prior to certification of this matter to the Board. See February 2012 Notice of Withdrawal. Therefore, the withdrawal was effective upon receipt by the agency of original jurisdiction. See 38 C.F.R. § 20.204. For that reason, the Board will not further address that claim. The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Evidence has been received subsequent to the final consideration of the claim by the RO and the Veteran has waived RO consideration of that evidence. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c) (2013). 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 The Veteran claims entitlement to service connection for an acquired psychiatric disorder to include PTSD. To establish his claim, the Veteran must show a current diagnosis, an in-service injury or disease (a "stressor" in cases involving PTSD), and a causal nexus between the in-service injury or disease (stressor) and his current acquired psychiatric disorder. The in-service stressor has been established and verified, so the Veteran must establish the remaining elements: a current disability and a nexus between his service and that current disability. The RO denied the claim for failure to meet either of those elements. At his hearing before the undersigned, the Veteran indicated that a VA physician had recently diagnosed him with PTSD, but that those records were not yet in evidence. The records were obtained and, as noted in the introduction, the Veteran waived AOJ consideration of those records; the Board may consider them. Those records do reference PTSD and treatment of symptoms typical of PTSD. However, it is not clear whether the Veteran has actually been diagnosed with PTSD by a qualified mental health professional pursuant to the DSM-IV criteria. See, e.g., April 2011 VA Mental Health Note (noting that Veteran "was given a Brief PTSD Screen to assist the patient with his future C & P appeal"). It appears, from review of the newly obtained VA treatment records, that the April "brief PTSD screen" was the source of the later indications of PTSD in the treatment records, rather than a rigorous diagnosis pursuant to DSM-IV. See 38 C.F.R. § 4.125(a) (for VA compensation purposes, the diagnosis of a mental disorder must conform to DSM-IV). In any event, the updated records do not contain any nexus opinion linking any currently diagnosed PTSD with the Veteran's active service. Therefore, the Board will remand the matter for an updated examination. See McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006) (noting "low threshold" for obtaining an examination). Also, to ensure compliance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the updated VA examination should address any and all acquired psychiatric disorders. Lastly, the most recent information available to the Board indicates that the Veteran's treatment for mental health issues at the Amarillo VAMC and associated facilities was ongoing. To ensure an adequate examination that includes review of all pertinent treatment records, the RO should obtain updated treatment records from February 2012 to the present prior to scheduling the examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding adequate examination must consider prior medical history and examinations); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from the Amarillo VAMC and associated outpatient clinics for all treatment from February 2012 to the present. Documentation of efforts to obtain these records must be associated with claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 2. After obtaining as much of the above evidence as is available, then, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of the Veteran's current acquired psychiatric disability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with any examination deemed necessary. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any necessary testing should be accomplished. After reviewing the record and performing any examination of the Veteran deemed necessary, the examiner should address the following: a. Does the Veteran currently have any acquired psychiatric disability? b. For each acquired psychiatric disability identified in response to (a), is it at least as likely as not (probability of at least 50 percent) that the Veteran's current acquired psychiatric disability is etiologically related to his active military service? c. If PTSD is not diagnosed, please explain why/how the Veteran does not meet the criteria for such a diagnosis. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence, and consider all psychiatric disorders, not just PTSD. If the benefits sought on appeal are not granted, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ MICHELLE L. KANE 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).