Citation Nr: 18132211
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-26 033
DATE:	September 6, 2018
REMANDED
Whether new and material evidence has been received to reopen, or whether official service department records have been received to reconsider, a claim for entitlement to service connection for a psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from February 1969 to February 1972, to include verified service in the Republic of Vietnam from January 1971 to January 1972.
Initially, the Board notes that a December 2004 rating decision denied, among other disabilities, service connection for depression and PTSD.  The Veteran filed a February 2005 Notice of Disagreement with those denials and an August 2005 Statement of the Case was issued.  The Veteran did not perfect his appeal to the Board by filing a Substantive Appeal (VA Form 9) with that decision.
In January 2012, the Veteran filed a petition to reopen his claim for entitlement ot service connection for PTSD.
The Board notes that claims for service connection for psychiatric disorders, to include PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Although in the instant case the Veteran has only recently claimed entitlement to service connection for PTSD, he has previously claimed service connection for depression and VA treatment records demonstrate a diagnosis of depression.  VA treatment records also reflect a diagnosis of adjustment disorder.  Accordingly, the Board has recharacterized the Veteran’s claim to include all diagnosed psychiatric disorders.  
Prior to deciding the Veteran’s claim on the merits, an initial determination must be made regarding whether the Veteran’s previously denied claim may be reopened based on the receipt of new and material evidence or whether it may be reconsidered based on the receipt of relevant official service department records.
VA regulations provide that previously denied claims may be reopened and adjudicated on the merits based on receipt of new and material evidence.  38 C.F.R. § 3.156(a), (b) (2017).
These regulations also require VA to reconsider previously denied claims on the merits whenever relevant service records unavailable at the time of the last final rating decision are submitted.  38 C.F.R. § 3.156(c) (2017); Vigil v. Peake, 22 Vet. App. 63 (2008).  If reconsideration is warranted, finality of the prior rating decision is vitiated, and the claim will be addressed de novo.
Reconsideration of a claim is more advantageous to a Veteran than reopening a claim because of the effective date assigned if it is found that service connection is warranted.
The Veteran’s service treatment records contain a clinical record cover sheet which indicates he was hospitalized at Fort Polk, Louisiana, on January 17, 1972, for “improper use of heroin not involving addiction of dependence.”  The complete records from the Veteran’s period of hospitalization are not associated with the evidence of record.  The Board notes that clinical records, such as hospitalization records from a military facility, are often stored separately from a veteran’s service treatment records.  There is no indication that the Agency of Original Jurisdiction (AOJ) has attempted to obtain these records, and attempts to obtain them must be made on remand. 
Moreover, there is no indication that the Veteran’s service personnel records have been requested, and the AOJ must make all appropriate attempts to obtain them on remand.
At a June 2015 VA psychiatric examination, the examiner found that the Veteran did not have a diagnosis of any psychiatric disorder, to include PTSD, noting that the Veteran was not receiving any current treatment or taking medication for any psychiatric disorder.  This finding was not reconciled with conflicting evidence of record, particularly VA treatment records, which document diagnoses of PTSD, major depressive disorder, and adjustment disorder.  The Board notes that the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary’s adjudication of the claim.”  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Given that the record contains prior diagnosed psychiatric disorders, the Board finds a remand is required to reconcile this conflicting evidence and to obtain etiology opinions with respect to each diagnosed disorder.
The matter is REMANDED for the following action:
1. Attempt to obtain the Veteran’s service department records, to include:
(a)	Clinical hospitalization records from Fort Polk, Louisiana, dated January 1972, and
(b)	The complete service personnel record.
All attempts to obtain these records must be made until it is determined that either the records do not exist or that further attempts to obtain them would be futile.  If any of the aforementioned records are unavailable, the Veteran must be notified of such pursuant to VA regulation.
2. Following completion of step 1, conduct any additional development deemed necessary, to include any development to verify any claimed stressors.
3. Following completion of steps 1 and 2, afford the Veteran the appropriate VA examination(s) to determine the etiology of all diagnosed psychiatric disorders.  All appropriate psychological testing must be accomplished.  The examiner must elicit from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms.  A complete copy of the claims file must be made available to and reviewed by the examiner.
Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, the examiner is requested to provide the following information:
(a)	 Identify all diagnosed psychiatric disorders on examination and in VA treatment records (PTSD, depression, adjustment disorder).  
(b)	With regard to each psychiatric disorder, regardless of whether the examiner determines the condition has resolved or is in remission, determine whether it is at least as likely as not (50 percent probability or higher) that the disorder began during or is etiologically related to the Veteran’s active duty service.
(c)	If the examiner determines that any diagnoses in VA treatment records reflects a misdiagnosis, a complete explanation for this determination must be provided.
If the examiner determines that the Veteran is not credible for any reason, he or she must provide a full explanation for why this is so, with citations to the record.
A complete rationale for all opinions must be provided.  If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so.  If, for any reason, the Veteran does not appear for his scheduled examination, the examiner is requested to provide the above medical opinions based on a review of the evidence of record.
4. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim.  See 38 C.F.R. §§ 3.158, 3.655 (2017).   In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record.
5. The AOJ must review the examination report to ensure it complies with the specific directives of this Remand.  If deficient in any manner, corrective action must be taken at once.
Then, the Veteran’s claims must be readjudicated.  If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.
 
MICHAEL MARTIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jessica O'Connell, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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