Citation Nr: 1014366 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 08-26 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to June 1978. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for bipolar disorder. As noted on the title page, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that 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). Pursuant to the Veteran's request on his August 2008 VA Form 9, substantive appeal, he was scheduled for a videoconference hearing before a Veterans Law Judge in December 2008. He was notified of this hearing in letters dated in November 2008 and December 2008. However, he failed to appear for the hearing. A postponement was not requested or granted. The Veteran has not asserted any good cause for missing the hearing or requested that it be re-scheduled. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704 (2009). The Veteran filed a notice of disagreement with a June 2006 decision denying service connection for non-service connected pension. A statement of the case (SOC) was issued in July 2007. However, in an August 2007 correspondence, the Veteran withdrew his claim for non-service connected pension. Therefore, the issue has not been perfected for appellate review and the Board does not have jurisdiction over the issue. See 38 U.S.C.A. § 7104 (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In a March 2007 correspondence, the Veteran indicated that he was treated at the VA hospitals in Fort Wayne and Marion, Indiana from the 1980's through the 1990's. Additionally, a private treatment record dated in February 2006 noted the Veteran's statement that he had tried to commit suicide at age 23 and had been hospitalized at the VA. Treatment records from the VA Medical System dated beginning in 1990 are of record but not earlier. Because VA is on notice that there are VA records that may be applicable to the Veteran's claim and because these earlier records may be of use in deciding the claim, these records are relevant and must be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, records from the Social Security Administration (SSA) for determinations dated in 2006 are in the claims folder. Notably, an August 2006 private treatment record noted that the Veteran had apparently been on disability from 1991 to 1998 which had been discontinued due to his income. It is unclear whether the Veteran was on SSA benefits at that time. On remand, the RO should clarify if and from whom he received benefits from 1991 to 1998, and with any necessary assistance from the Veteran, obtain these records. See supra 38 C.F.R. § 3.159(c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding records from the VA Healthcare System, to specifically include those dated from the 1980's to the 1990's. All efforts to obtain these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2009) (emphasis added). 2. Clarify with the Veteran if and from whom he received disability benefits from 1991 to 1998. With any necessary assistance from the Veteran, obtain these records. All efforts to obtain these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2009) (emphasis added). 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide him and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ J. K. BARONE Acting 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) (2009).