Citation Nr: 1104215 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 08-24 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1951 to May 1953. This matter comes before the Board of Veterans' Appeal ("Board") from a January 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio, which denied the Veteran's claim of entitlement to service connection for a nervous disorder. Although the Veteran originally applied for service connection for a nervous disorder, the Board notes that the United States Court of Appeals for Veterans Claims ("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 issue on appeal has been recharacterized generally to include entitlement to service connection for an acquired psychiatric disorder. In July 2009, the Veteran appeared at an informal conference before a Decision Review Officer at the Cleveland RO. A report of the conference has been associated with the Veteran's claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 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, DC. VA will notify the appellant if further action is required on his part. REMAND The Veteran claims that he developed a "nervous condition" after returning home from active duty service during the Korean conflict. However, he has never claimed to have sought or received treatment for, or been diagnosed with, an acquired psychiatric disorder during service. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claim. In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection for a psychosis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§3.307(a)(3), 3.309(a) (2010). Review of the claims folder shows that the Veteran's service treatment reports are not of record. However, the claims folder contains a statement from the National Personnel Records Center ("NPRC"), which appears to indicate that the Veteran's treatment records could not be located, and in fact, were most likely destroyed in a 1973 fire at the NPRC facility in St. Louis, Missouri. Although the Veteran was informed of this in the January 2008 rating decision, he has maintained that he did not experience symptoms of an acquired psychiatric disorder until after returning home from service. The post-service treatment reports of record also fail to demonstrate the existence of, treatment for, or a diagnosis of a psychosis within one year of separation from service. Private treatment records from the Cleveland Clinic, dated June 1981, show that the Veteran was treated in the emergency room after a piece of steel that he was hammering broke off and injured his upper abdomen. One week later, he returned for follow-up treatment. The treating practitioner noted that, although the Veteran had recently been rather nervous, he noted that this condition was "not unusual for him." The note went on to state that the Veteran "had one episode shortly after arriving home [after several days in the hospital in June 1981] when he had loss of memory for recent events. This has cleared since, but there is still some question as to what might be the cause for this." Id. There is no evidence, however, that this was a chronic condition, or that any of the Veteran's medical providers linked this incident to active duty service nearly 30 years earlier. The claims folder also contains a letter from the Veteran's treating private physician, Dr. Mark Speelman, dated January 2009. In the letter, Dr. Speelman stated that he had treated the Veteran since March 1997, during which time, he was seen for a number of physical disorders, including complaints of peripheral neuropathy. He further wrote that the Veteran had a history of depression and chronic anxiety, as well as a history of cognitive impairment, but, according to his neurologist, was now felt to have "Alzheimer's type" dementia. In this regard, the Board notes that, although recent treatment reports show that the Veteran has been diagnosed with Alzheimer's disease, he has specifically indicated that he is not applying for service connection for that disease. Nevertheless, the claims folder contains no actual treatment reports from Dr. Speelman showing that the Veteran was ever diagnosed with, or treated for depression, anxiety or any other acquired psychiatric disorder. Most recently, however, the Veteran submitted an April 2010 statement from what appears to be a physician's assistant in the office of Dr. Speelman, who wrote that, as a result of the Veteran's active duty service in the Korean War, "he has experienced trauma significant enough to have an emotional impact on his life." She further indicated that he now requires round- the-clock care "because of his insecurity and fear of wrong- doing." She concluded by stating that he did not suffer from any of these symptoms before military service, and therefore opined that these symptoms constitute "a service-related issue." However, although the practitioner indicated that she was submitting her statement in support of the Veteran's claim that he has an anxiety disorder, she did not indicate what mental disorder, if any, he has. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In addition, the Court has held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Because the statement from the office of Dr. Speelman satisfies the low threshold for obtaining a medical nexus opinion, the Board finds that a VA examination is necessary in order to obtain an opinion as to whether the Veteran has an acquired psychiatric disorder, and if so, whether it is related to active duty service. 38 C.F.R. § 3.159(c)(4) (2010). In addition, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Therefore, while this case is in remand status, the RO should ensure that any additional VA treatment records since March 2010, specifically relating to treatment for a psychiatric or psychological disorder, are obtained and associated with the claims file. Finally, as noted above, because the claims folder contains no treatment reports from any of the Veteran's private medical practitioners showing that he has been diagnosed with an acquired psychiatric disorder (other than Alzheimer's disease), while the claim is in remand status, an attempt to obtain up-to-date private records is necessary. 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) (2010). Expedited handling is requested.) 1. Obtain all available VAMC treatment records pertaining to the Veteran's treatment of an acquired psychiatric disorder since March 2010 and associate with the claims folder. Any negative reply should be included in the claims folder. 2. Send the Veteran a release form(s) and ask him to identify any private medical providers that have treated him for an acquired psychiatric disorder since his release from active duty service (to include Dr. Mark Speelman). Any records obtained should be included in the claims folder. Any negative reply should be included in the claims folder. 3. Schedule the Veteran for an examination with an examiner of appropriate expertise to determine whether he has a current diagnosis of an acquired psychiatric disorder. The claims folder must be provided to the examiner for review of pertinent documents therein in conjunction with the examination and the examiner must note that the claims folder has been reviewed. Any and all tests or studies deemed necessary should be performed and all clinical findings should be reported in detail. The examiner should also elicit from the Veteran his statements concerning any symptoms he's experienced and note that, in addition to the medical evidence, the Veteran's statements have been considered. For any acquired psychiatric disorder diagnosed (to exclude Alzheimer's Disease or dementia), the clinician must opine as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is related to service. Any and all opinions must be accompanied by a complete rationale. a). The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. b). If the examiner finds that it is impossible to provide the requested opinion without resort to speculation, it should be so stated. In that case, the examiner must specifically support this conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self- reported history), and addresses such matters as whether 1) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); 2) the question falls outside of the limits of current medical knowledge or scientific development; 3) the condition manifested in an unusual way, such that its cause or origin is unknowable; or 4) there are other risk factors for developing the condition. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ BARBARA B. COPELAND 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) (2010).