Citation Nr: 1039616 Decision Date: 10/22/10 Archive Date: 10/27/10 DOCKET NO. 03-09 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to an increased rating for residuals of a fracture of the left fifth metatarsal head, currently evaluated as 10 percent disabling. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to March 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for an acquired psychiatric disability, and the claim for an increased rating for residuals of a fracture of the left fifth metatarsal head. This case has been before the Board of Veterans' Appeals (Board) in March 2005 and again in July 2008, and was remanded for additional development and/or to ensure due process. The case is again before the Board for appellate consideration. This 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 his part. REMAND While further delay is regrettable, the Board notes that further development is necessary with respect to the claims. The Veteran has claimed an increased evaluation for residuals of a fracture of the left fifth metatarsal head. During the course of his hearing, he reported that he was receiving treatment for his left foot at the VA Medical Center (VAMC) in Clarksburg, West Virginia and at the Pittsburgh VAMC. VA treatment records from Clarksburg dating to January 2009 are of record. However, during the hearing he reported that he had an appointment scheduled for two weeks following the hearing. The Board notes that the Veteran denied receiving any treatment for his foot at the time of the November 2007 VA examination. Thus, on remand, relevant treatment records from the Clarksburg VAMC dating since January 2009 should be requested, and records from the Pittsburgh VAMC dating since November 2007 should be requested. In addition, the Veteran has testified that he is currently experiencing pain in his left foot and trouble walking. As the last VA examination was in November 2007, almost 3 years ago, the Board is of the opinion that a current examination should be scheduled. The Veteran also asserts service connection is warranted for an acquired psychiatric disability. During the hearing before the undersigned in June 2010, the Veteran testified he was treated at the Brooklyn, New York VA Medical Center within one year of his discharge from service for psychiatric complaints. He claims he was put on medication at that time. He also mentioned being treatment at numerous other facilities, both private and VA. The Board notes that by letter dated October 2005, the AMC requested the Veteran provide information concerning his treatment at four private facilities, but the Veteran failed to respond to the letter. In its March 2005 remand, the Board directed the AMC to obtain outpatient treatment records from the Brooklyn VAMC from 1994 to 2001. The Board acknowledges that some records from that facility have been associated with the claims folder. However, it does not appear that records from immediately following the Veteran's separation from service have been requested. By rating decision dated August 2009, the RO concluded new and material evidence had not been submitted to reopen a claim for service connection for residuals of a head injury. The Veteran submitted a notice of disagreement with this determination in November 2009. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). This matter must, accordingly, be remanded for issuance of a statement of the case. Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO/AMC for action as follows: 1. The RO/AMC should contact the Veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers, VA and non-VA, from whom he has received treatment for his psychiatric disability from his discharge from service until 1994. After securing the necessary authorizations for release of this information, the RO/AMC should seek to obtain copies of all treatment records referred to by the Veteran. 2. The RO/AMC should request treatment records from the VAMC Brooklyn from 1989 to 1994. If such records cannot be obtained the claims file should be annotated to reflect such and the Veteran notified of such. 3. The RO/AMC should request relevant treatment records concerning the Veteran's left foot from the Clarksburg VAMC dating since January 2009 and from the Pittsburgh VAMC dating since November 2007. If such records do not exist or cannot be obtained the claims file should be annotated to reflect such and the Veteran notified of such. 4. Schedule the Veteran for a VA foot examination to determine the current nature and severity of his residuals of a fracture of the left fifth metatarsal head. The claims file should be provided to the examiner for review in conjunction with the examination. All necessary tests should be conducted and the results reported. The examiner should discuss any functional impairment resulting from the residuals of a fracture of the left fifth metatarsal head. 5. If appropriate, based on the evidence obtained pursuant to item 1 above, the Veteran should then be afforded a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability. The examiner is requested to provide an opinion concerning whether it is at least as likely as not that the Veteran's current psychiatric disability is related to service. The rationale for any opinion expressed should be set forth. All necessary tests should be performed. The claims folder should be made available to the examiner in conjunction with the examination. 6. Following completion of the above, the RO/AMC should review the evidence and determine whether the Veteran's claims may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 7. The RO/AMC should issue a statement of the case reflecting its adjudication of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a head injury. The appellant should be afforded the appropriate period of time to respond. This issue should be returned to the Board only if the Veteran submits a timely substantive appeal. 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). ______________________________________________ K. A. BANFIELD 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).