Citation Nr: 18153827 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-49 210 DATE: November 28, 2018 ORDER New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for an acquired psychiatric disability to include PTSD is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a chronic rash on the face and arms is remanded. Entitlement to service connection for chronic bilateral eye pain is remanded. Entitlement to service connection for chronic throat pain and bumps on the mouth is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for an unsteady gait and dizzy spells disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for chronic teeth problems is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for chronic headaches is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. In an unappealed September 2013 rating decision, the RO, in part, denied service connection for PTSD on the basis of lack of diagnosis of PTSD and there being no confirmed evidenced of the reported stressors occurring. The Veteran did not timely perfect an appeal of this determination, and no new and material evidence was received within one year of notice of this decision. 2. Evidence received since the September 2013 rating decision including VA treatment records noting diagnoses of depression and dementia is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD. CONCLUSIONS OF LAW 1. The September 2013 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.113 (2017). 2. New and material evidence has been received since the September 2013 denial, and the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1965 to May 1967. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2016 rating decision, the RO, in part, reopened and then denied the Veteran’s claims for service connection for PTSD. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Notably, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). While the January 2016 rating decision denied service connection for both PTSD and dementia, the Board notes that the record contains other psychiatric disorders such as major depressive disorder and generalized anxiety disorder. Thus, in accordance with Clemons, the Board has recharacterized the issues on appeal as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. In a correspondence, the Veteran indicated that he had received treatment from a Dr. Sonya Medina at the VA clinic in Athens, Georgia that first began in October 2012. However, the record to date does not contain any VA treatment records from Dr. Medina. Notably, an October 2018 correspondence indicated that a records request was rejected as the request had expired. Therefore, it appears that additional records pertaining to the Veteran’s claimed disabilities may exist. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the Secretary, and must be considered if the material could be determinative of the claim). In the same correspondence, the Veteran indicated that he had received treatment from a Dr. John Drummond at Piedmont Hospital in Atlanta, Georgia. However, the Veteran noted that he had been unable to obtain the records from this treatment and the record does not currently contain the treatment records from a Dr. John Drummond at Piedmont Hospital in Atlanta, Georgia. Under these circumstances, the Board also finds that VA has a duty to make a further attempt to obtain the Veteran’s private treatment records. Massey v. Brown, 7 Vet. App. 204 (1994). Additionally, the record also demonstrates that the Veteran has received disability compensation from the Social Security Administration (SSA) due to his disabilities effective in December 2008. However, the Board notes that currently no records from the SSA are currently associated with the claims folder. Where there is actual notice to VA that the Veteran is in receipt of benefits from the SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon where the identified records have a reasonable possibility of assisting in substantiation of the Veteran’s claim. Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). The Board finds that since SSA records may be outstanding, a remand is required to afford the RO/AMC the opportunity to seek any such records and associate then with the claims file. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain from the Athens, Georgia VA Medical Center (VAMC) all outstanding medical records to include records from a Dr. Sonya Medina beginning in October 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Request all available records concerning the Veteran from SSA. All records obtained or any response received must be associated with the claims file. If these records are unavailable, a negative response must be received from SSA and this must be noted and explained in the claims file. 4. All necessary steps to obtain any records of treatment pertinent to the claim on appeal from a Dr. John Drummond at Piedmont Hospital in Atlanta, Georgia. should be taken. Records of any other pertinent treatment should be obtained. The Veteran’s assistance in identifying and obtaining the records should be solicited as needed. The attempts to procure records should be documented in the file. If records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel