Citation Nr: 1804475 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-33 979A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Army from June 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran indicated in his December 2013 VA Form 9 that he wished to testify at a videoconference hearing. However, in an April 2014 correspondence, the Veteran notified VA that he wanted to cancel the hearing request. Therefore, as there is no other indication that the Veteran still desires a hearing, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017). The Board additionally notes that although the issues of entitlement to service connection for ischemic heart disease and sleep apnea were included on the May 2014 VA Form 8 (Certification of Appeal), their inclusion was merely a clerical error. On the December 2013 VA Form 9, the Veteran clearly specified that he was only appealing the issue of entitlement to service connection for PTSD. In Percy v. Shinseki, 23 Vet. App. 37 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus, VA may waive any question of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Unlike the claimant in Percy, in this Veteran's case, VA has not "consistently treated this matter as if it was part of the timely filed Substantive Appeal." Percy, 23 Vet. App. at 46. Other than the May 2014 VA Form 8 and Appeal Certification Worksheet, which are merely administrative documents, there is no reference to continued claims of entitlement to service connection for ischemic heart disease and sleep apnea subsequent to the Statement of the Case, and VA did not take any action to treat the issue as being on appeal. 38 C.F.R. § 19.35 (2017) (noting that the certification of appeals is used for administrative purposes). The RO did not issue a Supplemental Statement of the Case or otherwise readjudicate the claims since the November 2013 Statement of the Case. Accordingly, the facts of this case are distinguished from Percy, and the issues of entitlement to service connection for ischemic heart disease and sleep apnea are not in appellate status, and are not before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran claims entitlement to service connection for PTSD but his contentions as to how he incurred PTSD and the evidence of record appear to be conflicting. Although in a March 2011 letter, a VA social worker stated that the Veteran had delayed onset PTSD which was related to combat service, at a November 2013 VA examination, the Veteran denied having ever participated in combat. Rather, in February 2011 correspondence, he claims that his PTSD is the result of not being able to return home to be near his parents who both had heart problems and which resulted in his father having a fatal heart attack while the Veteran was still in Vietnam. He also claims that his PTSD is the result of not being able to visit his fiancée when she was injured in a motor vehicle accident which put her in a fatal coma. The November 2013 VA examiner did not find that these two claimed stressors would support a diagnosis of PTSD. At the November 2013 VA examination, however, the Veteran also reported that while in service he heard that one soldier shot another solider accidently because he did not know that his gun was loaded. The Veteran claims that he witnessed the soldier lying on the ground injured but that the soldier later received medical care and lived. The November 2013 VA examiner found that such a stressor would meet the criteria to support a diagnosis of PTSD although she ultimately concluded that the Veteran did not have PTSD but rather dysthymic disorder. Although the Veteran has not formally claimed this stressor, in light of the examiner's opinion, and the fact that a number of records are outstanding, the Board finds that additional development of the appeal is indicated. On remand, the Veteran should be afforded an opportunity to identify and verify this stressor. In addition, the evidence shows that the Veteran receives psychological treatment through the Dearborn Vet Center in Dearborn, Michigan. See, e.g. March 2011 and February 2012 letters. These records are not currently of record and should be obtained. The Veteran also receives treatment through the Detroit VA Medical Center and there are records from that facility through November 2013. Any outstanding records should be added to the claims file. A July 2012 VA treatment record shows that the Veteran receives regular income from the Social Security Administration. It is not clear whether these are disability benefits but no attempt has been made to ascertain whether there are any outstanding records related to an application for disability benefits from that agency. This should be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD. The Veteran should also be asked to provide sufficient information to verify the in-service stressor that he has reported regarding witnessing a soldier suffer a gunshot wound (such as a description of the incident, the date, location, and names of any individuals injured or killed), or any other in-service stressors he may have. Based on the information provided by the Veteran, conduct any development that may be necessary to verify any reported stressor. 2. Associate with the claims file any outstanding VA treatment records, to include any records from the Detroit VA Medical Center from November 2013 to the present. 3. Contact the Social Security Administration and obtain all records associated with any claim for disability benefits. 4. Contact the Dearborn VA Vet Center for any group or individual therapy or treatment records for the Veteran. The request should specifically indicate that VA is seeking the actual records and not a summary of the Veteran's treatment or symptoms. All attempts to obtain this data, and any responses received, should be documented in the claims folder. The Veteran should be requested to sign any necessary authorization for release of such medical records to VA. The Veteran should be apprised that he must provide specific authorization for release of records from Dearborn Vet Center. 5. After completion of the above, provide the Veteran with another VA examination regarding his psychiatric condition, including PTSD. The examiner should review the file prior to the examination and indicate that such a review has taken place. The examiner should identify all psychiatric conditions present, and for each identified psychiatric condition, including PTSD, the examiner should provide an opinion as to whether the identified psychiatric condition is at least as likely as not (50 percent or greater) related to the Veteran's reported in service stressors/service experiences. A complete rationale should be provided for all opinions. 6. After completion of the above, readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GAYLE E. STROMMEN 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).