Citation Nr: 1604757 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 10-28 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, major depressive disorder, and/or schizoaffective disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from October 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. This case was last before the Board in June 2015, when the Board denied increased evaluations for the Veteran's bilateral hearing loss and tinnitus; those issues are considered final at this time and will no longer be addressed in this decision. The June 2015 Board decision additionally reopened the service connection claim for a psychiatric disorder and remanded that claim for further development to obtain Social Security Administration (SSA) records, VA treatment records since May 2010, and any identified private treatment records. The Board notes that the SSA records and VA treatment records since May 2010 have been obtained and are associated with the claims file. Likewise, in an August 2015 letter, the Veteran was asked to identify any private treatment records that were outstanding, to include from Drs. J.A.C.S. and M.A.R., and to submit the appropriate authorization forms; the Veteran has not responded to that letter as of this time. The claim was readjudicated in a September 2015 supplemental statement of the case. In light of the above development, the Board finds that its June 2015 remand order has been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The case has been returned to the Board for further appellate review at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's VA treatment records demonstrate diagnoses of PTSD, major depressive, and schizoaffective disorders; his VA treatment records also demonstrate that he is being treated with lorazepam for anxiety and serlintine for depression during the appeal period. The Veteran has never been afforded a VA examination of his psychiatric disorder since he filed his March 2009 claim, and his last VA examination of his psychiatric disorder was in March 1984. The Veteran has filed a generic claim for service connection, noting generally a belief that his psychiatric disorder is related to military service. In his notice of disagreement, he indicated that he was treated by VA in 1973 for his psychiatric condition and that is why he should be service connected. The Board notes that the VA treatment records from July to August 1973 are of record, but that episode of treatment is nearly two years after his discharge from service and was not noted at that time as being related to military service, but rather due to job stressors. However, in light of the evidence that the Veteran is currently diagnosed with several potentially different psychiatric disorders and he has generically averred that they are related to service, the Board finds that the low threshold for obtaining a VA examination has been met in this case. A remand is therefore necessary in order to afford the Veteran a VA psychiatric examination which addresses the etiology of any present psychiatric disorder. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). On remand, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Brooklyn VA Medical Center since discharge from service in August 1971, and associate those documents with the claims file. 2. Obtain any and all VA treatment records from the San Juan VA Medical Center since discharge from service in August 1971, particularly since August 2015, and associate those documents with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his psychiatric disorder, which is not already of record, to particularly include Drs. J.A.C.S. and M.A.R. The Veteran is reminded that the failure to provide VA with information and authorization to aid in obtaining any identified private treatment records, particularly from Drs. J.A.C.S. and M.A.R., may ultimately result in the denial of his claim due to lack of substantiating evidence. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Schedule the Veteran for a VA psychiatric disability examination with a psychiatrist to determine whether any current psychiatric disorder is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary special studies or tests, to include any psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory and the Mississippi Scale for Combat-Related PTSD, should be accomplished, as appropriate. The examiner should get an extensive psychiatric history respecting the Veteran, including a history of potential stressors or events, or psychiatric treatment that occurred before, during, or after military service. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found, including an anxiety, major depressive, and/or schizoaffective disorders. The examiner should also specifically determine if the Veteran suffers from PTSD as required by 38 C.F.R. § 4.125. If the Veteran is shown to have PTSD, the examiner should specifically indicate the stressor(s) from which that diagnosis stems. If the Veteran does not meet the criteria for PTSD, the examiner should explicitly discuss which criteria for diagnosis are missing; the examiner should additionally discuss whether any other diagnoses of PTSD in the claims file were inappropriately or mis-diagnosed previously, and explain that conclusion. If PTSD is diagnosed, the examiner should opine whether it more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service. For each psychiatric disorder found other than PTSD, to specifically include the notably diagnosed anxiety, schizoaffective, and major depressive disorders, the examiner should provide an opinion regarding whether each disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service. The Veteran's lay statements regarding events that occurred during service should be discussed. The examiner should additionally address any evidence regarding onset of symptomatology and any evidence of continuity of symptomatology since discharge from military service and/or since onset of symptomatology. The examiner must additionally address the Veteran's service treatment records which are void of any psychiatric treatment during military service, and the 1973 VA psychiatric inpatient records which do not indicate any treatment for problems during service and which occurred 2 years after discharge from service. The examiner must also address the Veteran's other VA psychiatric examination in March 1984, and his other VA treatment records in the claims file, most of which seem to indicate that the Veteran's psychiatric treatment is related to "multiple life stressors" at various times of treatment rather than related to any injury or event during military service. The examiner should also address any private treatment records or other pertinent evidence of record, as appropriate. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for a psychiatric disorder, to include PTSD, anxiety disorder, major depressive disorder, and/or schizoaffective disorder. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).