Citation Nr: 18151203 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-56 194 DATE: November 16, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 1983. The Veteran seeks entitlement to service connection for a low back disability, a right knee disability, a left knee disability, bilateral pes planus, a right hand disability, and an acquired psychiatric disorder. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to all claims, a review of the record reveals that the Veteran receives regular VA treatment. However, the most recent VA treatment records associated with the claims file are dated in April 2013, over five years ago. Significantly, the October 2016 Statement of the Case indicated that the RO reviewed additional VA treatment records which have not been associated with the claims file. Specifically, the October 2016 Statement of the Case referenced, “Treatment reports from VAMC Fayetteville dated July 6, 1994 through September 27, 2016,” “Treatment reports from VAMC Durham dated February 4, 2015,” and “Treatment reports from VAMC Salisbury dated August 4, 2008 to September 25, 2014.” Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). As such, all outstanding VA treatment records must be obtained and associated with the claims file prior to adjudicating these claims on the merits. Additionally, the Board emphasizes that the Veteran was never provided with a VA examination with respect to his claim of entitlement to service connection for an acquired psychiatric disorder. Generally, a VA medical examination is required for a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, following a positive PTSD screening, the Veteran underwent an April 2010 Mental Health Consult at the Fayetteville VA Medical Center, in Fayetteville, North Carolina, at which time he was diagnosed as having depression, not otherwise specified. The April 2010 Mental Health Consult noted that the Veteran reported nearly falling off a cliff while training in Panama during his period of active duty service, and that he experienced disciplinary problems while in service such as being restricted to base and having his rank reduced from E4 to E1. Additionally, in support of the Veteran’s claim, a private clinical psychologist hired by the Veteran’s attorney submitted a Mental Disorder Disability Benefits Questionnaire dated in May 2014. Based on a review of the Veteran’s claims file and an interview conducted over the telephone with the Veteran, this private clinical psychologist diagnosed the Veteran as having major depressive disorder (with secondary cannabis dependence), which “more likely than not has resulted from his military experiences, and which has been exacerbated by his post-military, nonservice-connected medical condition, and was present at this level of severity when the claim for compensation was filed on AUG 16, 2012.” The Board finds that this private medical opinion alone, conducted without an in-person examination of the Veteran and without adequate supporting rationale, is not sufficient to warrant a grant of entitlement to service connection. However, in light of the medical and lay evidence regarding current diagnoses, probable etiology, potential in-service stressors, and behavioral changes, the Board finds that the low threshold of McLendon has been met. Accordingly, on remand, the Veteran should be provided with a VA examination to determine the nature and etiology of any acquired psychiatric disorders present proximate to, or during, the pendency of the appeal. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, all records generated by VA facilities from April 2013 to the present must be obtained, to include records from the Fayetteville VA Medical Center, in Fayetteville, North Carolina; the W. G. (Bill) Hefner VA Medical Center in Salisbury, North Carolina; and the Durham VA Health Care System in Durham, North Carolina. Efforts to obtain these records must be documented in the claims file, and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any acquired psychiatric disorder. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. The examiner is asked to identify all psychiatric disorders found proximate to, or during, the pendency of the appeal, and to determine whether the Veteran meets the diagnostic criteria for PTSD under the DSM-5 as specified by 38 C.F.R. § 4.125 (2017). In doing so, the examiner should discuss the previous diagnoses of record, to include PTSD, depression, and major depressive disorder with secondary cannabis dependence. If the Veteran does not meet the diagnostic criteria for PTSD, then the examiner must detail which criteria were and were not met, and why. If the Veteran is found to have a PTSD diagnosis and any of his asserted stressors have been verified, the examiner should state whether the Veteran’s verified stressor(s) are sufficient to have caused PTSD, and offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the verified stressor(s) caused the Veteran’s PTSD. If a psychiatric disorder other than PTSD is identified proximate to, or during, the pendency of the appeal, opine as to whether it is at least as likely as not (50 percent probability or greater) that it had its onset in active service, was caused or related to active service, or in the case of any diagnosed psychosis, whether it manifested within one year of the Veteran’s separation from active service. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it A complete rationale should be given for all opinions and conclusions expressed. 3. After completing any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought remains denied,   then the Veteran and his attorney must be furnished a Supplemental Statement of the Case and afforded the appropriate time for response before the claims file is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel