Citation Nr: 0610341 Decision Date: 04/10/06 Archive Date: 04/26/06 DOCKET NO. 04-43 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1963 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied reopening the veteran's service connection claim for chronic anxiety with depression. In an October 2004 statement of the case the RO reopened the claim based upon the receipt of new service medical records and denied entitlement to service connection upon reconsideration. See 38 C.F.R. § 3.156(c) (2005). The veteran withdrew her request for a Board hearing by correspondence dated in December 2005. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on her part. In this regard, it is noted that this case has been advanced on the Board's docket, pursuant to 38 C.F.R. § 20.900. Therefore all action should be taken expeditiously. REMAND On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law. Regulations implementing the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). A review of the record shows the veteran was notified of the evidence not of record that was necessary to substantiate her claim and of which parties were expected to provide such evidence including by correspondence dated in June 2003 and June 2004. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006), finding that the VCAA notice requirements applied to all elements of a claim, including the degree of disability and the effective date of an award. As the case is being remanded for additional development, appropriate action should be taken to ensure adequate VCAA notice as to all elements of the claim is provided. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159. In this case, the veteran contends that she has an acquired psychiatric disorder that was incurred during active service. In support of her claim she submitted several service department documents she obtained from the National Personnel Records Center, including additional service medical records, which VA had not obtained previously. It is possible that a further search for official service medical records might substantiate the veteran's claims of repeated visits to physicians in service. In addition, as the reasons for her early release from service in May 1964 are at issue, the Board finds the veteran's complete service personnel file should be obtained and added to the record. In a letter directed to President Bush, and received into the file in August 2005, the veteran, referring to episodes in service where she almost drowned, stated that a woman with whom she trained, "Doris," did drown. The veteran should be asked if she can provide any further information as to Doris' last name, and the approximate date and location where the alleged drowning took place, so that this event can be confirmed. The veteran has asserted on many occasions that she filed her initial claim for psychiatric disability in 1978 at the Roanoke RO. Although she did not indicate filing an earlier claim for VA benefits other than loan guaranty when she filed her 1992 claim, a search should be conducted to ascertain whether a claim was filed in 1978 and, if so, those records should be associated with the claims file. The Board notes the available record includes both positive and negative evidence as to service incurrence. The record clearly reflects that the veteran has received extensive medical treatment for a variety of disorders since the late 1960s. During this time, she was prescribed medication for anxiety. The private medical records on file do not reflect that any formal psychiatric evaluation was conducted, or that she was referred for evaluation and treatment by a psychiatric specialist, other than possibly a Dr. Kibbe, whom the veteran identifies as a psychiatrist. None of Dr. Kibbe's records link the onset of psychiatric symptoms present in the mid 1970s to military service, and in fact, state that the veteran had no problems with her nerves in service. In correspondence dated in April 2004 the veteran's private internist, M.P. M.D., stated his opinion that the veteran's anxiety/depression had their origin during her military service. However, none of Dr. P.'s treatment records, compiled over many years, reflect any references whatsoever to military service, or events which the veteran asserts occurred therein, which she claims led to the development of her psychiatric disability. It would be helpful if Dr. P. would provide the basis for his opinion linking the onset of the veteran's psychiatric disability to service, and whether he has any specialized training or expertise in the field of psychiatric illness. In contrast to Dr. P.'s opinion, and that of a VA psychologist in an October 2004 report, a board of two VA staff psychiatrists found that the veteran's symptoms were primarily consistent with a personality disorder and that it did not appear she developed a chronic psychiatric disability while on active duty. It was noted there was no record of ongoing anxiety or nervousness documented during active service. The veteran subsequently submitted additional evidence in support of her claim including correspondence dated in May 2005 from B.C.C., M.D., in essence, recalling his having treated her in February 1964 and prescribing medication for anxiety. In correspondence dated in January 2006, Dr. P. disputed the April 2005 opinion as to the veteran's having a personality disorder. Finally, submitted was a statement from a pastor, Reverend B.O.B. who reported having counseled the veteran during the period from 1965 to 1978, at which time she relayed some of the events in service on which she bases the development of her psychiatric illness, specifically the "near drowning" incidents, and "abuse" directed at her by physicians. Obtaining a copy of these counseling records would be beneficial in adjudicating the veteran's claim. Therefore, the Board finds additional development is required prior to appellate review. Accordingly, this matter is REMANDED for the following: 1. The veteran must be provided notification (1) of the information and evidence not of record necessary to substantiate her claim, (2) of the information and evidence that VA will seek to provide, (3) of the information and evidence that she is expected to provide, and (4) to request or tell her to provide any evidence in her possession that pertains to the claim. These notice requirements are to be applied to all elements of the claim. 2. Appropriate efforts should be taken to obtain the veteran's complete service personnel records, as well as any other service medical records which have not been forwarded to VA. Those records, along with the additional records submitted by the veteran directly to the Board, should be incorporated into the claims file. 3. It should be ascertained through appropriate procedures whether or not the veteran filed a claim for service connection for psychiatric disability in 1978 or thereabouts. If so, any records compiled in association with such claim should be incorporated into the claims folder. 4. In the event the veteran provides sufficient identifying information, it should be ascertained whether a trainee died as a result of drowning, at the time the veteran was in training, and the circumstances surrounding such incident. 5. After any necessary authorization has been received, Reverend B.O.B. should be asked to provide copies of his counseling records pertaining to the veteran, covering the period from 1965 to 1978. 6. Dr. P. should be contacted and asked to provide the basis for his diagnosis of the veteran, and whether he has any medical training or expertise in treating or evaluating psychiatric disability. 7. After the above development has been completed, the veteran's claims file should returned to the board of VA psychiatrists who participated in the April 2005 examination for clarification of the provided opinion. They should be requested to review the record and reconcile their opinion as to etiology in light of the evidence added since their examination of the veteran, including the May 2005 statement of Dr. Brian C. Campion and the January 2006 statement of Dr. Michael Payne. If neither of these examiners is available, the RO should consider whether the veteran should be scheduled for an additional examination by a board of two VA psychiatrists for an opinion as to whether there is at least a 50 percent probability or greater that an acquired psychiatric disorder was incurred in or aggravated by active service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 8. The veteran must be given adequate notice of the date and place of any requested examination, if such is deemed necessary. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 9. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed. If any benefit sought remains denied, the veteran and her representative 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. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2005).