Citation Nr: 1803978 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-04 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1970 to January 1972. He was discharged from service under honorable conditions. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to the benefits sought. The Veteran appealed the underlying decision in a Notice of Disagreement received in November 2012. The Veteran's claim was certified to the Board in November 2016. In his February 2014 substantive appeal, the Veteran requested a hearing before the Board in Washington, DC. In a July 2017 letter, the Veteran indicated that he no longer wanted a hearing before the Board. Therefore, the request for a hearing before the Board was withdrawn. See 38 C.F.R. § 20.704(e) (2017). The Veteran's claim has been developed and adjudicated as entitlement to service connection for PTSD. In addition to this disorder, the evidence of record demonstrates the Veteran also has a diagnosis of anxiety. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In light of Clemons, the issue has been recharacterized (as stated on the cover page) to encompass all psychiatric diagnoses. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has a current acquired psychiatric disorder that is related to his active service. In this regard, the Veteran's service in the Republic of Vietnam during the Vietnam Era from January 31, 1971 to November 25, 1971 has been verified, and his stressor of being involved in the theater of combat operations has been confirmed. In addition, the record demonstrates the Veteran's consistent reports that he experienced continuous nightmares, hypervigilance, sleep problems, difficulty concentrating, and the inability to form lasting relationships since his service in Vietnam. The Veteran underwent a QTC fee-based examination in August 2011, during which he reported that he sought treatment while in Vietnam for mental health issues. He stated that he underwent "observation," but he was reluctant to provide any further details. The Veteran further reported that his military occupational specialty was a prison guard, where he had shifts in the hospital and would sometimes have to assist the injured, to include a Vietnamese boy who had his hands blown off and sat in the Veteran's lap screaming while he waited for care. The examiner found the Veteran did not meet the diagnostic criteria for a DSM IV diagnosis of PTSD because the Veteran's symptoms did not fulfill Criteria B or C of the code. Subsequent VA outpatient treatment records dated in February 2015, October 2015, and May 2016; however, note diagnoses of PTSD and anxiety. Effective March 19, 2015, VA replaced outdated references with references to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). It was specifically noted that the Secretary did not intend for the provisions to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015). As the instant case was certified to the Board after August 4, 2014, the Veteran should be afforded a VA examination in compliance with the DSM-5 criteria. See 38 C.F.R. § 4.125 (a) (2017). Consequently, a remand is necessary for another VA examination to consider the additional diagnosis of anxiety disorder, the conflicting findings with respect to whether the Veteran has a current PTSD diagnosis under the DSM-5 criteria, and for an opinion to determine how, if at all, the examiner's opinion would differ from the August 2011 fee-based examiner's findings based upon consideration under the DSM-5 criteria. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, development to obtain any outstanding medical records pertinent to the Veteran's claim should be completed. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination by a physician with sufficient expertise to determine whether the Veteran has a current diagnosis of PTSD using the DSM-5 criteria and/or a current diagnosis of anxiety disorder. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated studies should be performed. Based on the review of the record and the examination results, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran has a currently diagnosed psychiatric disorder, to include PTSD, anxiety, or any other psychiatric disorder, which originated during service or is otherwise etiologically related to the Veteran's active service. In rendering the opinions(s), the examiner should specifically address the Veteran's contentions that he has experienced continuous nightmares, hypervigilance, sleep problems, difficulty concentrating, and the inability to form lasting relationships since his service in Vietnam. For purposes of the opinion(s), the physician should assume that the Veteran is credible to report a history of the aforementioned symptoms. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 3. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The AOJ should also undertake any other development it determines to be warranted. 5. Then, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ B. MULLINS 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).