Citation Nr: 1802152 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-08 642 ) 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 disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to February 1969 in the United States Army and from January 1991 to May 1991 in the United States Marine Corps. The Veteran has confirmed service in the Republic of Vietnam. Between these two periods of active duty, the Veteran had service with the Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a June 2017 videoconference hearing. On the record at the hearing, the Veteran waived initial RO review of evidence received since the issuance of the January 2014 Statement of the Case. 38 C.F.R. §20.1304(c) (2017). A copy of the hearing transcript has been associated with the Veteran's electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND After a comprehensive review of the electronic claims file, the Board finds a remand is required to ensure there is a complete record upon which the decide the Veteran's claims, so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA treatment records On remand, the AOJ is instructed to obtain updated VA treatment records from the VA medical facilities in Tampa, Florida from March 2013 to present and associate these records with the electronic claims file for evidentiary consideration. The AOJ is also requested to associate with the electronic claims file the VA treatment records from the VA Healthcare Systems in Boston (10/26/04-1/5/05) and Memphis (8/15/08-11/17/09), referenced in the January 2014 Statement of the Case. Private treatment records Pursuant to 38 C.F.R. §3.159(c)(1), the Board is obligated to "obtain relevant records not in the custody of a Federal department or agency, to include records from. . . private medical care providers" in accordance with the duty to assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See also 38 U.S.C. § 5103A(b) (2012). The electronic claims file contains a disability benefits questionnaire completed by licensed clinical social worker, K.P., in June 2016, in which the Veteran is diagnosed with PTSD. At the June 2017 Board hearing, the Veteran testified that he has treated with K.P. for at least three months, yet the electronic claims file does not contain any of her private treatment records. Since VA is on notice of outstanding private treatment records that might contain evidence relevant to the claim, the Board cannot properly adjudicate the claim at this time without prejudice to the Veteran. Therefore, the AOJ must undertake efforts to obtain these private treatment records upon remand. VA examinations The Veteran has undergone two VA examinations to assess his claims of an acquired psychiatric disability etiologically related to his active duty service and associated stressors. To date, the VA psychologists have declined to diagnose the Veteran with PTSD, but have instead diagnosed him with an anxiety disorder with depressive features, unrelated to his active duty military service. The Veteran's outpatient VA treatment records also fail to include a clinical diagnosis of PTSD. At the June 2017 Board hearing, the Veteran credibly testified regarding his in-service stressors and his present day psychological symptoms. However, he indicated he has not always been forthright regarding the frequency, severity, and duration of his psychological symptoms during the previous VA examinations and assessments. For instance, he indicated that when he was seen by a VA clinician in 2014 (whose treatment records are not yet associated with the electronic claims file, but are referenced in the August 2016 VA examination), he did not accurately complete the assessment questionnaire out of fear of "losing his rights" or being considered "dangerous." Given the above, the Board has elected to send the Veteran for an additional VA examination to assess the nature and etiology of any current acquired psychiatric disabilities, to include PTSD. As explained at the hearing, the Veteran is encouraged to be as honest as possible during examination to ensure the most accurate results. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the electronic claims file any outstanding VA clinical records from the VA Tampa medical facilities for the period from March 2013 to present. 2. Obtain and associate with the electronic claims file the VA treatment records from the VA Healthcare Systems in Boston (10/26/04-1/5/05) and Memphis (8/15/08-11/17/09), referenced in the January 2014 Statement of the Case. 3. Also, contact the Veteran and request that he provide an authorization allowing VA to obtain his complete medical records from licensed clinical social worker, K.P. If the Veteran provides the requisite authorization, the AOJ should undertake reasonable efforts to obtain these private treatment records. These efforts should include at least one follow-up request if the records are not received, or a finding that a follow-up request would be futile, pursuant to 38 C.F.R. § 3.159(c)(1), as well as the required notice to the Veteran in accordance with 38 C.F.R. § 3.159 (e)(1) that VA was unable to obtain such records. 4. Do NOT proceed with the following instruction to schedule a VA examination until all VA and private medical records identified above are obtained, to the extent they are available. 5. Then, schedule the Veteran for a VA psychiatric examination to assess the nature and severity of the Veteran's claimed acquired psychiatric disabilities, to include PTSD. The examiner is requested to identify the presence of any current psychiatric disabilities. If the examiner determines a diagnosis of PTSD is not warranted, then please consider and discuss the 2016 DBQ reflecting diagnosis of PTSD and explain why a current diagnosis of PTSD is not warranted. Regardless, for each current diagnosis, if any, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disability had its onset during the Veteran's active duty service or is otherwise etiologically related to his active duty service. The examiner is requested to review the Veteran's electronic claims file, including this REMAND, prior to the examination, and such review must be noted in the examination report. The examiner is requested to consider the credible testimony the Veteran provided at his June 2017 Board hearing regarding his current psychological symptoms. Any psychological testing deemed necessary by the VA examiner should be accomplished. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 6. After completion of the above, the issue on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate time period within which to respond thereto. 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).