Citation Nr: 1638730 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 12-23 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1969 to May 1971. This matter 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 Chicago, Illinois. This appeal was processed using both the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future review of this case should take into consideration the existence of this electronic record. In November 2014, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. The matter has been returned to the Board for appellate consideration. The issue of entitlement to an increased disability rating for service-connected diabetes mellitus has been raised by the record in November 2015, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2015). The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. REMAND In a January 2010 VA treatment record (associated with the electronic file in April 2015 following the March 2015 VA addendum opinion, which was obtained pursuant to the December 2014 Board Remand), a VA psychiatrist diagnosed the Veteran with PTSD. In an August 2015 submission, a Vet Center readjustment counselor, R.M., indicated that the Veteran was diagnosed with PTSD in 2008, and was again diagnosed with PTSD in 2015 at the Danville, Illinois VA Medical Center (VAMC). While some records from the VAMC were associated with the claims file in April 2015, the records do not appear to include the 2015 diagnosis R.M. referenced. Accordingly, these records should be obtained upon remand. 38 U.S.C.A. § 5103A (c) (West 2002); 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). R.M. also opined that he concurred with the diagnostic assessment of the VAMC mental health professionals relating to PTSD. As noted above, an addendum opinion was obtained in March 2015 pursuant to the December 2014 Board Remand. It does not appear that the VA examiner reviewed or considered the January 2010 diagnosis of PTSD by a VA psychiatrist or R.M. Furthermore, the examiner stated that "this is not to say that on re-examination the veteran might not present in a totally different and more consistently convincing manner" and based the opinion on the fact that there was "no data establishing a nexus." Given the diagnosis of PTSD in VA treatment records by a VA psychiatrist, and the examiner's own indication that another examination may result in different findings, another addendum opinion is necessary to adequately address the etiology of the current PTSD and acquired psychiatric disabilities other than PTSD. Accordingly, the case is REMANDED for the following action: 1. Associate with the electronic record all VA clinical documentation from the Danville VA Medical Center pertaining to the treatment of the Veteran's psychiatric disabilities not already of record, particularly from 2015, forward. 2. After any records requested above are obtained, schedule the Veteran with a VA examination with an appropriate examiner, other than the mental health professional who provided the March 2015 addendum opinion. Request that a psychiatrist or psychologist review the electronic file in connection with the examination. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the examination report (another examination of the Veteran is not required). All indicated tests or studies should be performed. The VA examiner should offer the following opinions: a) Is it at least as likely as not (a 50 percent probability or greater) that the diagnosed PTSD had its onset in, was caused by, or is otherwise related to service, specifically to fear of hostile military activity? b) For any diagnosed non-PTSD psychiatric disorder, to include, but not limited to, depression, and anxiety disorder, is it at least as likely as not (i.e., probability of 50 percent or more) that the acquired psychiatric disability had its onset during, was caused by, or is otherwise related to, active service? In rendering the opinions requested in paragraphs a) and b), the VA examiner should assume, as fact, that 1) the Veteran has diagnoses of PTSD, depression, and anxiety disorder; and 2) the Veteran experienced fear of hostile military or terrorist activity during service in Vietnam. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. 3. After completion of the above and any additional development deemed necessary, readjudicate the issue of service connection for an acquired psychiatric disability, to include PTSD, depression, and anxiety disorder, in light of all the evidence of record. If the determination remains adverse to the Veteran, he and the representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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 2014). _________________________________________________ H. SEESEL 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).