Citation Nr: 18140721 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-06 375 DATE: REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1977 to February 1984. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denied service connection for PTSD. In February 2013, the Veteran filed a notice of disagreement (NOD ). A statement of the case (SOC) was issued in January 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) the following month. The Board notes that on his VA Form 9, the Veteran checked the box indicating his desire for a Board hearing before a Veterans Law Judge, at a local RO. An October 2015 report of general information then indicates that the Veteran called to advise that he did not want a hearing of any kind in connection with his appeal. The Board thus considers the Veteran’s request for a hearing to be withdrawn. The Board further notes that after the Veteran’s claim was certified for appeal to the Board, he submitted a PTSD Disability Benefits Questionnaire, which had been completed by his private physician in March 2015. This evidence was submitted without a waiver of initial consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304. However, as the Veteran’s substantive appeal was received after February 2, 2013, such a waiver is not required. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). Regarding characterization of the appeal, the Board points out that the United States Court of Appeals for Veterans Claims (Court) has held that a claim for service connection for PTSD encompasses all psychiatric disabilities reflected in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the record reflects other psychiatric diagnoses, to include depression. Accordingly, and consistent with Clemons, supra, and the current record, the Board has characterized the appeal to encompass all diagnosed disorders. As for representation, the Board notes that the claims file includes an August 2010 power of attorney (POA) in favor of the North Carolina Division of Veteran Affairs. In September 2017, the North Carolina Division of Veteran Affairs revoked its representation of the Veteran due to the fact that the Veteran had moved out of state. In May 2018, the Veteran executed a POA in favor of the Vietnam Veterans of America. Accordingly, the Board recognizes Vietnam Veterans of America as the Veteran’s current representative in connection with this claim. In the instant case, the Veteran is seeking service connection for an acquired psychiatric disorder. Specifically, he initially claimed service connection for PTSD, which he contends resulted from a traumatic incident in service in which he had to assist in tagging bodies of those soldiers who had died in a mass casualty when a transport vehicle ran off a bridge while he was stationed at Camp Casey, South Korea. The Veteran also asserts that he suffers from major depression and anxiety disorder related to service. As noted above, in March 2015, the Veteran submitted a PTSD Disability Benefits Questionnaire completed by his private physician, E.H., M.D., which report records diagnoses of PTSD and major depression. Notably, Dr. E.H. does not provide any opinion regarding the etiology of the Veteran’s PTSD and/or depression. The Board notes that the Veteran’s VA treatment records show mental health treatment and indicate a diagnosis of PTSD. Further, when examined in May 2011, the VA examiner recorded diagnoses of PTSD and depressive disorder. Service connection for PTSD was, however, denied, because the Veteran’s claimed in-service stressor could not be verified. See 38 C.F.R. § 3.304(f) (providing that service connection for PTSD requires, inter alia, credible supporting evidence that the in-service stressor occurred). The Veteran was again examined in December 2014, at which time the VA examiner could not render a diagnosis of any mental disorder, stating that the Veteran’s presentation during the examination indicated inaccurate and inconsistent self-report. The examiner did, however, acknowledge that individuals who present with inaccurate self-report of symptoms may very well have mental health symptoms that are clinically significant and distressing. The examiner then noted that the veteran’s “most recent contact with [mental health] treating providers at the VA (2013) did not include a diagnosis of PTSD.” In this regard, the Board notes that the record currently before it contains VA treatment records dated only through August 2010. Given that the evidence indicates the existence of relevant records (i.e., VA mental health treatment records dated since August 2010), the Board finds that the matter must be remanded for the AOJ to attempt to obtain the physical therapy records, as these records may contain information relevant to the Veteran’s claim for an acquired psychiatric disorder. See 38 U.S.C. § 5103A(b)(1) (requiring VA to assist claimants in obtaining evidence necessary to substantiate their claims by making “reasonable efforts to obtain relevant records (including private records)”); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (defining relevant records as “those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim”); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). The Board further notes that Dr. E.H., in the Disability Benefits Questionnaire he completed in March 2015, indicated under “records (evidence)” reviewed that his “own” records had been reviewed. Notably, additional records from Dr. E.H. have not been provided. Accordingly, on remand, the AOJ should obtain any available private treatment records from Dr. E.H.. See Golz, supra; 38 C.F.R. § 3.159(c)(2). In doing so, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to enable VA to obtain, any outstanding, pertinent private (non-VA) records. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The action identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the matter on appeal. The matter is hereby REMANDED for the following action: 1. Obtain from the Durham, North Carolina VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 2010. Also ascertain whether the Veteran has been seen at any other VAMC since moving from North Carolina to Delaware and, if so, obtain from that facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Specifically request that the Veteran provide the full name and address for the private physician who provided the March 2015 Disability Benefits Questionnaire, identified as Dr. E.H. in the claims folder. Following receipt of that information, contact the physician in question, with a request that copies of all records of treatment or evaluation of the Veteran be provided to the AOJ. The Veteran should be requested to sign the necessary authorizations for release of such private medical records to VA. (The Veteran is reminded that “the duty to assist is not always a one-way street,” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and that it is he who is ultimately responsible for submitting any private medical evidence.) 3. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. Following completion of the above. review all private and VA treatment records received, and take any responsive action, to include obtaining additional medical comment/opinion concerning the etiology of any diagnosed psychiatric disorder(s), if deemed necessary. Then, after completion of any other action warranted—readjudicate the claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file and of record since the last adjudication of the claim) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel