Citation Nr: 1542376 Decision Date: 09/30/15 Archive Date: 10/05/15 DOCKET NO. 14-14 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a gastric ulcer. 2. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), major depression, and unspecified depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. With respect to the Veteran's claim for service connection for posttraumatic stress disorder (PTSD), the Board acknowledges that the scope of a mental health disability claim 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 (2009). A review of the evidence shows that the Veteran has other psychiatric diagnoses to include major depression and unspecified depressive disorder. Thus, although the Veteran's psychiatric claim was originally adjudicated only with respect to PTSD, under Clemons, it can be broadened to include a claim for any acquired psychiatric disorder. As such, the Veteran's claim has been recharacterized accordingly. In August 2014, the Board remanded the issues on appeal for further development, to include obtaining VA treatment records. This appeal includes documents contained in the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of all of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the issues of entitlement to service connection for a gastric ulcer and an acquired psychiatric disorder, to include PTSD, major depression, and unspecified depressive disorder, must be remanded for further development. At the outset, the Board notes that there are treatment records identified in the record that have not been associated with the claims file. The Veteran stated that he has received treatment from his private physician for 10 years; however, the record contains some treatment notes submitted by the Veteran, the earliest of which is dated December 2008. As it appears that there are treatment records pertinent to the issues on appeal that have not been associated with the claims file, on remand, these records should be obtained and associated with the claims file prior to any further adjudication. Gastric Ulcer The Veteran's service treatment records (STR's) show that in October 1968 he was treated for complaints of stomach cramps on and off for 8 months. On his separation examination he also reported stomach problems and diarrhea for a period of 2 days. Post-service treatment records reflect a history of gastric surgery in 1973 for a perforated duodenal ulcer. The surgery took place at the Menorah Medical Center, however the record reflects that all attempts to obtain those treatment records have failed and those attempts are documented in the claims file. Private treatment records also indicate that the Veteran continues to be treated for gastric symptoms and that he takes medication to relieve those symptoms. At the October 2012 VA examination, the examiner opined that it was less likely than not that the Veteran's condition incurred in or was caused by military service. The rationale provided was that there was no evidence to support or discredit any link between the Veteran's service and the gastric ulcer perforation. The examiner also stated that there was no evidence of symptoms until two years or more after separation. The Board finds that the October 2012 VA examination report is inadequate. In this regard, the Board notes that the examiner's opinion did not take into consideration the Veteran's in-service complaints of stomach problems, or the Veteran's lay statements that he has continued to treat his gastric symptoms with over-the-counter medications since service. Therefore, as the examination and opinion report is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Accordingly, the Board finds that the Veteran should be afforded a new VA examination to determine whether he has a current gastric condition that is a result of the stomach problems he had in service. Acquired psychiatric disorder to include PTSD and depression The Veteran asserts that he experienced symptoms of depression and PTSD as a result of experiences he had while on active duty. VA and private treatment records reflect that the Veteran has been diagnosed with PTSD, major depression, and unspecified depressive disorder, and that he participates in ongoing treatment for these conditions. At an October 2012 VA PTSD examination, the examiner concluded the Veteran did not meet the criteria for a diagnosis of PTSD or any other mental disorder. The Veteran, in his January 2013 notice of disagreement, April 2014 Substantive Appeal, and the February 2015 Informal Hearing Presentation, has asserted that the October 2012 VA psychiatric examination was inadequate in that he was not asked any questions regarding his mental health at that time, to include any questions regarding his in-service experiences. In addition, although the Veteran has other psychiatric diagnoses, those diagnoses were not addressed by the October 2012 VA examiner. Thus, the Board finds that the October 2012 VA psychiatric examination report is also inadequate. Accordingly, the Veteran should be afforded a new VA examination to assess whether he has a current psychiatric disorder that is related to his service. Lastly, the Veteran should be provided an opportunity to submit any evidence, including a stressor statement, to support his claim for PTSD. Accordingly, the case is REMANDED for the following action: 1. Identify, obtain, and associate with the claims file, or Virtual VA or VBMS any outstanding VA treatment records that are not already associated with the claims file. 2. The RO should assist the Veteran in obtaining any and all private treatment records related to the claims on appeal as mentioned by the Veteran in his January 2013, January 2015, and February 2015, statement, to include sending the Veteran authorization forms for the release of any identified outstanding private treatment records. 3. Then schedule the Veteran for an appropriate VA examination with an examiner other than the VA examiner who performed the October 2012 VA examination. The examiner must review the claims file and must note that review in the report. Any indicated tests should be performed. Following review of the claims file, the examiner is requested to: (a) Diagnose any gastric conditions. (b) Render an opinion whether it is at least as likely as not (a 50 percent probability or more) that any currently manifested gastric condition is related to the Veteran's October 1968 complaints of stomach problems during his active duty service. The examiner should specifically address the Veteran's in-service symptoms of stomach problems, his statements regarding continuity of symptomatology, and ongoing treatment for this condition. 4. Then schedule the Veteran for a psychiatric VA examination with an examiner other than the VA examiner who conducted the October 2012 VA examination. The examiner must review the claims file and must note that review in the report. Any indicated tests should be performed. Following review of the claims file, the examiner is requested to: (a) Diagnose any acquired psychiatric conditions. (b) Opine whether it is at least as likely as not (a 50 percent probability or more) that any currently diagnosed psychiatric condition, to include PTSD, major depression, and unspecified depressive disorder, is related to the Veteran's active duty service. (c) If the examiner finds that the Veteran does not have a current psychiatric disorder, the examiner should reconcile that with the diagnoses of PTSD, major depression, and unspecified depressive disorder noted in the claims file. The examiner must explain the rationale for all opinions given, citing to supporting factual data and medical literature as deemed appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 5. Thereafter, the AOJ should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and they should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 2015). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2015).