Citation Nr: 1118798 Decision Date: 05/16/11 Archive Date: 05/26/11 DOCKET NO. 06-26 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 1995 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied entitlement to service connection for schizophrenia. In September 2009, the Board remanded the claim for additional development. The Board, the RO, and the Appeals Management Center have previously considered the Veteran's claim as being one to reopen a previous denial of service connection and involving the question of whether new and material evidence had been submitted. In an April 2011 post-remand brief the Veteran's representative contended that the January 1995 rating decision did not become final, and new and material evidence was not required. The Board agrees. The January 1995 decision denied service connection for schizophrenia based on the absence of symptoms, treatment or diagnosis in service and a lack of a nexus between the currently diagnosed disability and service. Following the January 1995 rating decision, the Veteran submitted a statement in September 1995, where he stated that he experienced symptoms, such as hearing voices or auditory hallucinations, during service, that he received psychiatric treatment in service and that he had received treatment for these symptoms ever since discharge. This is evidence that was not of record at the time of the January 1995 decision and was so significant that it had to be considered in order to fairly adjudicate the claim. Hence it was new and material. 38 C.F.R. § 3.156(a) (2001). As new and material evidence, the letter required that the claim be reconsidered without regard to the January 1995 decision. See 38 C.F.R. § 3.156 (b) (2010) (New and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period"). The RO readjudicated the claim in April 1996, finding that new and material evidence had not been received to reopen the claim. Notice of the decision was provided in May 1996. In a letter attached to a March 1997 Congressional Inquiry, the Veteran expressed disagreement with the denial of compensation for his psychiatric disorder. As the letter clearly noted the Veteran's intention to appeal the denial of benefits, the letter is accepted as notice of disagreement. 38 C.F.R. § 20.300 (2010). VA's duty to provide a statement of the case was triggered but the document was not provided until August 2006, during the current appeal. The Veteran perfected his appeal by submitting a timely substantive appeal in response to the statement of the case. Therefore, the claim, which originated in July 1994, has been continuously on appeal and the January 1995 rating decision never became final. The Board also notes that the issues of entitlement to service connection for high blood pressure, stroke and a sleep disorder and entitlement to non-service connected pension benefits have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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. REMAND In the September 2009 remand, the Board requested that all records associated with a Social Security Administration (SSA) determination of benefits be obtained. Following the first request, SSA indicated that the relevant folder had been sent to a District Office. The records were requested from the District Office in December 2009 and January 2010. No response was received to either request. In March 2010, the AMC made a Formal Finding of Unavailability of the SSA Records However, under 38 C.F.R. § 3.159(c), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2) (2010). Given that there has been no response from the District Office, it is not clear that further efforts would be futile. 38 C.F.R. § 3.159(c)(1). The Veteran received a VA examination in September 1994. The examiner did not have the benefit of reviewing the claim file prior to the examination and inaccurately stated that the Veteran was in the military from 1982 to 1991. The opinion was not supported with a rationale. The opinion was; therefore, not accurate. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008). The Veteran's psychiatrist has provided an opinion that the Veteran's current schizophrenia may have started during active duty service. A medical opinion expressed in terms of "may," also implies "may or may not" and is too speculative to establish a plausible claim. Bostain v. West, 11 Vet. App. 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993). The psychiatrist's opinion is too speculative to establish service connection, but does trigger VA's duty to provide an examination. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran recently submitted a release authorizing VA to obtain records of his treatment for a psychiatric disability from Rodney A. Villanueva, M.D. VA has not had an opportunity to seek these records. Accordingly, the case is REMANDED for the following action: 1. Obtain from SSA the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim in accordance with 38 C.F.R. § 3.159(c). A response should be sought from the SSA District Office to which the Veteran's records were reportedly sent. 2. Take the necessary steps to obtain all records of the Veteran's psychiatric treatment from Dr. Rodney A. Villanueva. If the records cannot be obtained, advise the Veteran of this fact and of the efforts made to obtain the records. 3. The Veteran should be scheduled for a VA psychiatric examination. The examiner should review the claims folder and note such review in the examination report or in an addendum. The examiner should provide an opinion as to whether any currently diagnosed psychiatric disability, including schizophrenia and schizoaffective disorder, at least as likely as not (e.g., a 50 percent or greater probability) had its onset in service or is the result of a disease or injury in service. The examiner should provide a rationale for each of the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The agency of original jurisdiction should review the examination report to ensure that it contains the opinions and rationales requested in this remand. 4. If any benefit for which there is a perfected appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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 2002 & Supp. 2010). _________________________________________________ Mark D. Hindin 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).