Citation Nr: 1631014 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 13-13 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and J.S. ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to July 1970. His service included time in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) has been recharacterized as a claim for service connection for an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in May 2016. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds the two VA examinations of record to be insufficient to decide the claim. Therefore, remand is required so that the Veteran may be afforded an additional examination. The threshold matter in a claim for service connection is whether there exists a current disability. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). The disability need not be present at all times, rather it is sufficient if it is present at any point during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Further, in situations where there exists a recent diagnosis of a disability prior to the filing of the claim, the report of diagnosis is considered relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Here, the Veteran underwent VA examinations in February 2011 and February 2013 that diagnosed anxiety disorder and alcohol abuse. The examiners considered a potential diagnosis of PTSD but did not find that it was currently present. The February 2013 examiner also found that historical VA medical records did not support a diagnosis for PTSD. The February 2013 examiner did not consider or discuss a September 2011 private psychiatric evaluation that diagnosed PTSD and linked it to the Veteran's active service. In addition, neither examination discussed whether the Veteran had a diagnosis of MDD at any point during the pendency of the claim, a disorder that was noted in the VA treatment records. Accordingly, remand is required for a new VA examination. The examiner must identify all psychiatric disabilities that have been present during the pendency of the Veteran's claim. In addition, on remand, any outstanding VA treatment records should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorders. The entire claims file must be reviewed in conjunction with the examination. The examiner is asked to identify all current psychiatric disorders. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; so from September 4, 2010 onward. The psychiatric disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of PTSD, major depressive disorder, anxiety disorder, and alcohol abuse. All of these disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that PTSD is not a current disability, then the explanation should include a discussion of the VA medical records, prior VA examinations, the September 2011 private evaluation, as well as the Veteran and J.S.'s lay statements regarding his condition. In addition, if PTSD is found to be a current disability, the examiner must explicitly identify the stressors upon which the diagnosis is based. For each diagnosed mental health disorder, the examiner is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that it was incurred in or is otherwise related to the Veteran's active military service, to include service in the Republic of Vietnam. A complete rationale must be provided for each answer. The rationales must include a discussion of the pertinent evidence of record, to include lay evidence. 3. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board 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).