Citation Nr: 1802230 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-29 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from November 1965 to August 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran asserts that he has PTSD and generalized anxiety disorder as a result of traumatic experiences with his fellow service members while in active service. Alternatively, the Veteran contends that his psychiatric disabilities are due to fear for his life during active service. The record reflects that according to the VA treatment records from July 1990 to July 2016, the Veteran has indications of diagnoses of PTSD and generalized anxiety disorder. Moreover, at his March 2017 hearing before the Board, the Veteran testified for the first time as to military sexual trauma (MST) and physical violence that occurred during his active service. However, while the Veteran underwent a VA examination in September 2012, the examination report reflects that there was no diagnosis of PTSD, but major depressive disorder with psychotic features and generalized anxiety disorder was diagnosed. Importantly, there is no medical opinion regarding the etiology of any of the Veteran's mental health diagnoses. Furthermore, as the Veteran has recently reported MST and physical violence for the first time, those in-service stressors must be evaluated and considered in conjunction with any previously rendered diagnoses. As such, the Board finds that a new VA examination must be ordered. In addition, the Board notes that subsequent to the issuance of the February 2014 statement of the case, VA treatment records dating to July 2016 and further testimony regarding in-service stressors were added to the record. Under 38 C.F.R. § 20.1304 (c), the Veteran may waive his right to have any pertinent evidence submitted by him or his representative reviewed by the Agency of Original Jurisdiction (AOJ) in the first instance. However, as no such waiver of evidence has been associated with the record, this evidence must be considered by the AOJ in the first instance, and a remand is required in order to accomplish that. 38 C.F.R. §§ 19.37 (b), 20.1304 (c) (2017). Finally, current treatment records should be identified and obtained prior to a final decision in this appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records not already of record in the claims file. 2. Then, schedule the Veteran for a VA psychiatric examination in order to determine the nature and etiology of any current psychiatric disability, to include PTSD, generalized anxiety disorder, and major depressive disorder with psychotic features. The examiner must review the claims file in its entirety and note that review in the report. Based on a review of the record, the examiner should accomplish the following: (a) Diagnose all psychiatric disabilities present and state whether each criterion for a diagnosis of PTSD is met. (b) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any psychiatric disability that is related to any aspect of his active service. (c) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has PTSD that is related to any reported stressor. In providing these opinions, the examiner should address pertinent medical evidence of record, to include prior indications of a PTSD diagnosis in the Veteran's medical records. The examiner must also consider the Veteran's assertions of MST and physical violence in reaching any conclusion. A thorough rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant 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). _________________________________________________ Kristin Haddock 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).