Citation Nr: 1752084 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-02 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1990 to April 1991, with a period of active duty for training from May 1984 to September 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Des Moines, Iowa Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Board denied service connection for a psychiatric disability. The Veteran then appealed the January 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2016, the Court issued a memorandum decision vacating the Board's January 2015 decision and remanding the claim for readjudication consistent with the decision. The case returned to the Board and was remanded in March 2017 for compliance with the July 2016 memorandum decision. This case is now assigned to the undersigned. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND The Board's March 2017 remand instructed the RO to obtain an addendum opinion that considered evidence noted in the November 2009 VA Gulf War Guidelines examination, specifically, diagnoses of adjustment disorder and depression and the Veteran's earlier mental health treatment in 2004. The remand also requested the RO to obtain and associate with the record medical records referenced in the November 2009 VA Gulf War examination report: a June 22, 2009, VA treatment record noting that "the Veteran does not have a valid diagnosis of PTSD"; a September 2008 VA examination or treatment record that includes a diagnosis of depression; and a March 11, 2004, VA treatment record noting "generalized anxiety disorder." If such records did not exist or were otherwise unavailable, a formal finding was requested. In a May 2017 report of general information, the Appeals Management Office certified that the June 2009, September 2008, and March 2004 VA records do not exist; however, the Veteran was not provided with notice pursuant to 38 C.F.R. § 3.159(e). Under 38 C.F.R. § 3.159(e), if VA concludes after continued efforts to obtain Federal records that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA would take regarding the claim, and notice that the Veteran is ultimately responsible for providing the evidence. Id. No such notice was provided to the Veteran in this matter. As such, the Veteran's claim of service connection for a psychiatric disability must be remanded to allow the AOJ to inform the Veteran of the unavailability of VA medical records pursuant to 38 C.F.R. § 3.159(e), and provide him the opportunity to provide a copy of the identified records to VA. Additionally, the Board finds that the May 2017 VA addendum opinion and June 2017 VA Initial PSTD disability benefits questionnaire to be inadequate for several reasons. Specifically, the Veteran's VA treatment records include diagnoses of depression, anxiety, and adjustment disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As neither the VA addendum opinion provider nor VA examiner addressed whether these diagnoses are related to service, a supplemental opinion is necessary. Further, the record also suggests that the medical evidence associated with the record is incomplete. A March 1998 VA treatment record from the Des Moines VA Medical Center notes that the Veteran was seen in the Mason City VA Community Based Outpatient Clinic (CBOC) in 1992. Such records have not been sought or associated with the claims file. Accordingly, as records of any VA treatment the Veteran received may contain pertinent information and are constructively of record, they must be obtained. Accordingly, the case is REMANDED for the following: 1. Obtain for the record copies of the complete clinical records of all VA treatment the Veteran has received for his psychiatric disability, to specifically include the earliest records available from the Mason City VA CBOC. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received are associated with the record. 2. Notify the Veteran of the unavailability of any VA medical records pursuant to 38 C.F.R. § 3.159(e). He must then be given an opportunity to respond. 3. Arrange to have the Veteran's record forwarded to the June 2017 VA examiner for review and an addendum opinion regarding the likely etiology of his depression, anxiety, and adjustment disorder, and any other additional psychiatric disorder newly diagnosed. (If that provider is unavailable, the record should be forwarded to another opinion provider for review and the opinion sought. If another examination is needed for the opinion sought, it should be arranged.) The Veteran's entire claims file must be reviewed by the opinion provider. Based on review of the record, the opinion provider is requested respond to the following: (a) Please identify (by diagnosis) each psychiatric disability entity shown (including PTSD, depression, anxiety, and adjustment disorder). In particular, does the Veteran have a diagnosis of PTSD under either DSM-IV or DSM-V criteria? If not, please identify the criteria for such diagnosis that are not met and reconcile that conclusion with the diagnosis of PTSD noted in a January 2009 VA treatment record. (b) If PTSD is diagnosed, the examiner should render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's PTSD is related to a stressor event during his service. (c) Regarding each psychiatric disability entity diagnosed, other than PTSD (to specifically include depression, anxiety, and adjustment disorder), please opine (based on the factual record) whether such is at least as likely as not (a 50 percent or better probability) related to the Veteran's service. All pertinent diagnoses already of record must be addressed. The opinion provider should consider that, while the March 2004 VA treatment record noting generalized anxiety disorder (referenced in a November 2009 VA Gulf War examination report) was determined to either not exist or be unavailable, a November 2004 VA treatment record notes a prior medical history of chronic anxiety. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Then, review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7252 (West 2014). This remand is a preliminary order and not an appealable decision on the merits of the claim(s). 38 C.F.R. § 20.1100(b) (2017).