Citation Nr: 1752510 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-34 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) and alcohol dependence. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and Y.M. ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970, with service in Vietnam. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The scope of a claim for service connection for a disorder includes any disorder that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In accordance with Clemons, the Board has expanded the issue on appeal as reflected on the title page. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). LCM includes VA treatment records from 2009 to 2017. Otherwise, documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND First, remand is required to attempt to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.15 (c)(2). At the July 2017 hearing before the Board, the Veteran testified that he was hospitalized for his anger at a VA hospital in the 1980s. These records have not been associated with the record and such should be accomplished upon remand. Second, remand is required to afford the Veteran an adequate VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in December 2009. The examiner noted that the Veteran did not appear to be experiencing significant clinical distress or functional impairment that would support a diagnosis of PTSD or other mental disorders although the Veteran's self-report suggested that he experienced significant PTSD symptomatology for some years following discharge. In his November 2012 Substantive Appeal, the Veteran stated that he was unable to express himself unless he was asked direct questions. At the July 2017 hearing, the Veteran's sister and attorney reiterated that due to a stroke, the Veteran had difficulty in answering questions. During the course of the hearing, the Veteran testified that he experienced symptoms including trouble sleeping, nightmares, anxiety, irritability, and isolation. The Board acknowledges the possibility that the December 2009 VA examination resulted in a lack of diagnosis due to the Veteran's difficulty in expression. Therefore, the Veteran should be afforded a VA examination where, if possible, a family member is present to assist the Veteran and provide clarification for the examiner. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment including records beginning in 1980. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the Veteran's psychiatric disorder. If requested, the Veteran must be allowed to bring a family member to assist with the facilitation of the examination. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a) Provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD had onset in, or is otherwise related to, active service. b) Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disorder other than PTSD is related to service. c) If PTSD or any other psychiatric disorder is found to be related to the Veteran's military service, then the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed alcohol dependency was caused or aggravated by that service-connected disability. The examiner must specifically address the following: 1) the December 2009 VA examination; 2) a January 2010 letter from the Veteran's brother that the Veteran had a dramatic change after arriving home from Vietnam; 3) a March 2010 notice of disagreement; 4) a September 2012 VA treatment record indicating a positive screen for PTSD; 5) a November 2012 substantive appeal where the Veteran reported an inability to sleep, losing family and friends, hiding under the bed when he hears fireworks, and being unable to express himself unless asked direct questions; and 6) the July 2017 Board hearing transcript. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ K. MILLIKAN 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) (2017).