Citation Nr: 18158110 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-14 623 DATE: December 14, 2018 REMANDED Service connection for an infectious disease (to include malaria and dengue fever) is remanded. Service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran honorably served on active duty from January 1959 to November 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the Veteran was previously denied service connection for malaria. See March 2005 Rating Decision. However, since the date of this instant claim for service connection for malaria, VA has routinely classified and discussed this issue as an initial claim and not a request for reopening. See September 2014 Rating Decision; March 2015 Statement of the Case (SOC). Because VA has proceeded to adjudicate the claim as a matter of service connection, despite this procedural background, VA has waived the right to use the procedural abnormality as a bar. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board notes that the Veteran has variously referred to his conditions as malaria and dengue fever. See, e.g., May 2014 Veteran’s Application for Compensation or Pension (VA Form 21-526EZ); November 2014 Veteran’s Statement. Therefore, the Board will broadly construe the claim for service connection for malaria as a claim for service connection for an infectious disease (to include malaria and dengue fever). See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that “may reasonably be encompassed by” the description of the claim and symptoms or other submitted information.). 1. Service connection for an infectious disease (to include malaria and dengue fever) is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the record does not include records of the Veteran’s in-service infectious disease treatment or a VA examination to assist the Veteran. The Veteran has reported that he received treatment for an infectious disease and was hospitalized for many weeks at the former U.S. Army Gorgas Hospital. See May 2014 Statement in Support of Claim (VA Form 21-4138); See July 2014 Private Initial Psychological Evaluation by M.N., M.A. However, it does not appear there were any attempts to obtain these records. Furthermore, the Veteran’s statements reflect continuing symptoms of fevers, chills, and night sweats that he attributes to the infectious disease with which he was afflicted while in service. See January 2005 Ambulatory Care Clinic Note by M.S., Medical Student and D.S., M.D.; May 2014 Veteran’s Application for Compensation or Pension (VA Form 21-526EZ). VA is required to provide examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a causal link to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Lastly, the Veteran’s wife submitted an incomplete or invalidly signed Authorization for Release of Information in June 2018. See June 2018 VA Form 21-4142. This was refused under the private medical records retrieval (PMR) center noting that it must be pursued via the “traditional process.” See June 2018 PMR Contractor Correspondence. However, the RO thus far has not generated a development letter to the claimant requesting that he complete, sign, date and return both of the applicable forms. See the M-21-1 (Adjudication Procedures Manual) III.iii.1.D.1.d. Accordingly, a remand is required to attempt to obtain medical evidence and to schedule an examination. 2. Service connection for posttraumatic stress disorder (PTSD) is remanded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the record does not include development attempting to verify an in-service stressor or a VA examination to assist the Veteran. In the course of evaluation, the Veteran has reported in-service stressors involving witnessing the beheading of a Panamanian official and fear of saboteurs and bears in Alaska. See July 2014 Private Initial Psychological Evaluation by M.N., M.A. The RO does not appear to have attempted to verify the Veteran’s reported in-service stressors. A remand is required for further development to attempt to corroborate the Veteran’s reported stressors. VA must provide a Veteran with a medical examination and opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran has been diagnosed by a private provider with PTSD and reports recurring psychological symptoms. The Veteran has provided two in-service stressors events, including seeing a specific person beheaded. In terms of an indication of a nexus, the Veteran has reported that his flashbacks specifically relate to his time in Panama. VA is required to provide examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The record reflects that the Veteran is or was receiving Social Security Administration (SSA) disability benefits. See June 2018 SSA Inquiry Screenshot. Because the Veteran’s SSA records may contain information relating to the Veteran’s issues on appeal, remand is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, a remand is required to attempt to obtain corroborating evidence of the Veteran’s reported stressors, social security records, and to schedule an examination. The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim of entitlement to service connection for PTSD or an infectious disease (to include malaria or dengue fever) He should be invited to submit this evidence himself or to request that VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file. At least two such efforts should be made unless it is clear from the private provider’s response to the first request that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he MUST be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Obtain records of any inpatient treatment at Gorgas Hospital from 1960 to 1962. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 3. The AOJ should request directly from the SSA all records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 4. Attempt to corroborate the Veteran’s in-service stressors, including seeing a Panamanian official beheaded, his exposure to military conflict, exposure to dangerous animals (including bears during his time in service in Alaska), and being on the lookout for saboteurs. If more details are needed, contact the Veteran to request the information. 5. After completion of directive one and two, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s infectious disease condition(s), to include claims for malaria and dengue fever. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s historical (1960-1962) infectious disease condition(s) by diagnosis(es). (b.) For EACH of the historical (1960-1962) infectious disease conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current reported symptoms of fevers, chills, night sweats, and any other symptom mentioned on exam is a continuation or residual of the same infectious disease? In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. He is competent to report what he was diagnosed with for those symptoms. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 6. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and cause of any acquired psychiatric condition (to include posttraumatic stress disorder (PTSD)). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include seeing a Panamanian official beheaded, his exposure to military conflict, exposure to dangerous animals, and being on the lookout for saboteurs In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. He is competent to report what he was diagnosed with for those symptoms. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Lambert, Associate Counsel