Citation Nr: 1801688 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-20 284A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, stress, depression, sleep disorder, nightmares, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1972 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May of 2017, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, the Veteran's claim for service connection for PTSD is deemed to include any acquired psychiatric disability, and has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include anxiety, stress, depression, sleep disorder, nightmares, and PTSD. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the matter on appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Board finds that the evidence of record with respect to the claim of entitlement for an acquired psychiatric disorder, to include anxiety, stress, depression, sleep disorder, nightmares, and PTSD, triggers the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). The Veteran's private medical records noted the Veteran as having sleeping issues, nightmares, stress, depression, and anxiety relating to the Veteran's work environment and his previous job termination. See 2012 private medical records. The Veteran also testified at his hearing that during service he had a "pretty contentious" relationship with his Non-Commissioned Officer who was a "hard tasker" and "just never seemed to be happy with what [he] did," which caused the Veteran to relive these moments and have anxiety, sleeping issues, nightmares, stress, and depression when he had issues with his recent work environment. See 2017 hearing transcript. This evidence provides an indication that the Veteran's acquired psychiatric disorder may be associated with his service. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). Accordingly, the Board finds that a VA medical examination and opinion is necessary in order to determine if the Veteran currently has a current acquired psychiatric disorder and if so, the nature and etiology of any diagnosed disabilities is appropriate in this case. 38 C.F.R. § 3.159(c)(4)(2017); McLendon v. Nicholson 20 Vet. App. 79, 81 (2006). Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA treatment records dated since October 2017 should be associated with the claims file. 2. After the above development has been completed and all records have been associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of all current acquired psychiatric disorders, to include anxiety, stress, depression, sleep disorder, nightmares, and PTSD. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder should be reviewed by the examiner. The examination report should note review of these records. The examiner should then: (a) Identify all acquired psychiatric disorders currently present. (b) Offer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or more) that a current acquired psychiatric disorder had its onset in service or was otherwise caused by an in-service disease or injury. (c) Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran's discharge from his period of active service. (d) If a diagnosis of PTSD is warranted, the examiner should provide an opinion whether it is at least as likely as not (i.e. probability of 50 percent or more) that PTSD is due to exposure to an actual confirmed stressor or the fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 3. After conducting any additional development deemed necessary, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, allow the appropriate time for response, and thereafter return the case to the Board, if in order. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).