Citation Nr: 1428331 Decision Date: 06/23/14 Archive Date: 07/03/14 DOCKET NO. 07-27 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and S.D. ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1969, with service in the Republic of Vietnam from August 1967 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2012, the Veteran and S.D. testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In March 2013, the Board denied the appeal as to the issue listed on the title page of this Remand. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In December 2013, the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans' Affairs (the Parties), vacated the March 2013 decision as to this matter, and remanded the matter to the Board for action consistent with the terms of the JMR. In the JMR, the Parties noted that the Board had, in its decision, "relied" on a May 2007 VA screening examination that was negative for PTSD. The Parties agreed that, presently, any report of a May 2007 VA PTSD screening examination report appeared to be absent from the record, the Veteran did not have such report in his possession, and it was unclear as to whether such report was ever originally part of the record. The Parties referred to VA's statutory duty to assist the Veteran in obtaining evidence held by Federal departments or agencies to substantiate his claim. The Board has reviewed the claims file, including the electronic portion of the claims file, but finds no report of a May 2007 PTSD negative screening examination. What the Board does find is a statement in a January 2011 PTSD examination report, which did not find PTSD and which the Board did, in fact, rely on to find that the Veteran did not have PTSD, that said the "patient also had been screened for post-traumatic stress disorder in 05/2007 and primary care with negative results." This was the source of the Board's reference to the May 2007 negative PTSD screening. It is reasonable to assume that the January 2011 examiner based his reference to VA medical records that were available to him, likely in electronic format, but have not been added to the hardcopy or electronic portion of the claims file. The Board notes that typically such screening examination results do not include any report other than the very brief statement that PTSD screen was "negative" (VA medical centers, as they are "Veteran" Medical Centers, check for PTSD in their patients regularly). In this regard, it is important to note that the Board gave weight to the finding of the VA examination report of January 2011 examination, which did not find PTSD (and is part of the record) and not on the reference within the report to the negative PTSD screening in May 2007. The reference to this negative screening on page eight of the Board's prior decision was a report of history by the Board (as cited by the VA examiner in January 2011) and was not "relied on" to deny this claim by either the Board or the examiner in 2011 (who examined the Veteran). The analysis section of the prior Board decision (page 9) gave "very probative" value to the January and July 2011 VA psychiatric examination assessments, which did not find PTSD, with no allusions to the May 2007 screening at all. That being said, a fair reading of the JMR requires that the Board remand this case so that the May 2007 PTSD screening examination documentation, if it does exist and is available, can be obtained and added to the claims file. The Court's Order must be obeyed, notwithstanding the fact that the Board has already remanded this case for records in September 2012. The Board apologizes to the Veteran for the delay in the full adjudication of his case. Accordingly, the case is REMANDED for the following action: 1. The AOJ must obtain a copy of a May 2007 VA record of a PTSD screening examination - including any report of such PTSD screening examination, and, obtain any other VA treatment records that are relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and any other psychiatric disorder. Such evidence must be associated with the claims file. If the May 2007 record is not obtained, the AOJ must obtain a negative reply, or replies, as necessary, and associate with the claims file such reply or replies, as well as documentation of all efforts to obtain the record. 2. Then readjudicate the claim that is the subject of this Remand. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the matter to the Board. 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 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). _________________________________________________ JOHN J. CROWLEY 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).