Citation Nr: 1032735 Decision Date: 08/31/10 Archive Date: 09/08/10 DOCKET NO. 07-10 231A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim for service connection for an acquired psychiatric disorder, claimed as emotionally unstable personality or nervous breakdown. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the Veteran's claim for emotionally unstable personality or nervous breakdown more generally to include other psychiatric conditions, as reflected on the cover page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. 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. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2009). The Veteran seeks to reopen a claim for service connection for an acquired psychiatric disorder. Information in the claims file reveals that he was denied service connection for schizophrenia, paranoid type, and for emotionally unstable personality in an October 1979 RO rating decision. The decision was appealed and later upheld in an April 1980 decision of the Board. Subsequently, the RO declined to reopen the Veteran's claim for a nervous condition in letter denials sent the Veteran in November 1981 and February 1985. In February 2005 he filed his present petition to reopen his claim for a nervous breakdown while in service. In April 2007, when the Veteran filed his VA Form 9, Substantive Appeal, the RO received from the Veteran a copy of a March 2007 Social Security Administration (SSA) award letter, indicating he had been awarded Social Security disability benefits from July 2005 forward. The VA Form 9 and the SSA correspondence did not indicate the reasons for the Veteran's receipt of SSA disability benefits. However, a February 2007 VA medical record associated with the claims file reveals that the Veteran told the examiner that he was receiving SSA disability benefits for leg/groin sarcoma and schizophrenia. The Board need not obtain SSA records if there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation, see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that the legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records). However, as noted above, a VA medical record in the claims file strongly suggests that the Veteran obtained SSA disability, in part, for a psychiatric disorder. As there is a reasonable possibility that the SSA records could help the Veteran both to reopen his psychiatric claim and to substantiate that claim, the duty to assist requires VA to attempt to obtain these records. The Board notes that while SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Masors v. Derwinski, 2 Vet. App. 180 (1992). Thus, the Board finds that the RO/AMC should try to obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, as well as copies of all medical records underlying that determination. The Board also notes that on his VA Form 9 the Veteran requested that copies of medical records from the Tuscaloosa VA Medical Center (VAMC) from 1979-1985 be associated with the claims file as he thought they would impact his claim for compensation. The Board notes that several VA medical records from the earliest part of this time period are found within the claims file including: a copy of a special report dated October 1979 showing the Veteran had been diagnosed with schizophrenia, paranoid type; a VA hospital summary from August 23, 1979 to November 6, 1979; and a hospital summary from December 29, 1979 to February 19, 1980. There are no other VA inpatient or outpatient treatment records for the Veteran from the 1980s included in the file. However, the Board notes that in a previous claim to reopen dated in January 1985, the Veteran reported that he had hospital stays at the VAMC at Tuscaloosa in 1979, 1980, 1981, and 1984. Therefore, on remand the RO/AMC should attempt to obtain VA medical records concerning the Veteran's treatment for any psychiatric disorder during the 1980-1985 period, in particular his reported stays at the Tuscaloosa VAMC in 1981 and 1984. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO/AMC should obtain from the Social Security Administration (SSA) the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied on concerning that claim. If medical evidence utilized in processing such claim is not available, that fact should be documented. Any subsequent disability determinations, as well as the records upon which those determinations were made, should also be requested. 2. The RO/AMC should obtain additional VA medical records concerning treatment of the Veteran's psychiatric complaints from the VAMC at Tuscaloosa for the period from 1980 to 1985, in particular inpatient records related to his reported hospital stays in 1981 and 1984. 3. Thereafter, the RO/AMC shall take such additional development action with respect to the claim as it deems proper. When the development requested has been completed, the case should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. 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. 2009). _________________________________________________ MICHAEL MARTIN 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).