Citation Nr: 18143188 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-20 354 DATE: October 18, 2018 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from July 1965 to July 1970. The Veteran received the Vietnam Service Medal with four stars and the Vietnam Campaign Medal with device, among other commendations. The Veteran has claimed service connection specifically for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. Therefore, the claim has been recharacterized as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The issue has thus been restated. The Board of Veterans’ Appeals (Board) notes that in his June 2015 substantive appeal (VA Form 9), the Veteran requested a hearing. In August 2018, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. The Board further notes that prior to his current representation, the Veteran was represented by the Disabled American Veterans (DAV). In May 2015, the Department of Veterans Affairs (VA) received a letter from the DAV, indicating that its representation of the Veteran had been revoked. Thereafter, VA received a signed VA Form 21-22a in June 2015, changing representation from the DAV to Attorney John V. Tucker. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case 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. Since the April 2015 statement of the case (SOC), new VA treatment records have been associated with the claims file; however, they have not been reviewed by the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case (SSOC) must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). As noted above, this provision only applies to evidence submitted by the Veteran. Therefore, the issue must be remanded to allow for AOJ consideration of the VA treatment records. In addition, the record reflects that the Veteran was most recently afforded a VA examination for his claimed acquired psychiatric disorder in April 2015. While the Veteran was afforded a VA examination for his claimed acquired psychiatric disorder, because the VA medical opinion associated with this examination did not consider all of the Veteran’s medical records associated with the Veteran’s claims file after the examination, the opinion was therefore based on incomplete medical records; thus, the opinion is of limited probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran’s claims folder). Therefore, the Board finds that a new VA psychiatric examination in consideration of all of the pertinent medical evidence of record is warranted. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. All pertinent evidence of record must be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including the DSM-5 criteria for PTSD. The Veteran must be interviewed. The examiner must provide a clear rationale for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. With respect to PTSD, the examiner must confirm or rule out a diagnosis of PTSD. If it is determined that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine as to whether it is at least as likely as not (50 percent probability or greater) related to a verified in-service stressor. For any diagnosed acquired psychiatric disorders other than PTSD, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that each disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran’s military service. It is noted that the regulations pertaining to in-service stressors do not apply to psychiatric disabilities other than PTSD. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issue on appeal, the SSOC should consider any new evidence received since the SOC issued in April 2015. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel