Citation Nr: 1300236 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 07-29 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include depression. 2. Entitlement to service connection for a bilateral leg disorder. 3. Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran requested a personal hearing before a Member of the Board at the RO in his September 2007 substantive appeal. The Veteran failed to report for his scheduled hearing in February 2009. The request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In a July 2009 decision, the Board reopened final claims for service connection for depression and bilateral leg disorder, and remanded the claims of service connection for depression, bilateral leg disorder, and hepatitis to the RO via the Appeals Management Center (AMC). In March 2012, the claim was remanded for further development. The case has been returned to the Board for appellate review. 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 The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, hepatitis, and a bilateral leg disorder. Regrettably, another remand is required in this case to comply with VA's duty to assist set forth at § 3.159 (2012). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The Board notes that in the May 2012 examination report associated with the claim for service connection for a bilateral leg disorder, the examiner noted findings contained in VA treatment records of February 2008. A review of the claim file shows that the most recent VA treatment records which have been associated with the claim file date to April 2007. Considering the examiner's report, it is clear that there are outstanding VA treatment records. Moreover, these records are clearly relevant to at least one of the issues on appeal. Given the VA's duty to assist and the fact that there are relevant outstanding VA treatment records, a remand is necessary for the RO to obtain the outstanding records and associate them with the claim file. In Stegall v. West, 11 Vet. App. 268 (1998), the U.S. Court of Appeals for Veterans Claims held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Under the circumstance, the case must be returned to the RO or the AMC for appropriate action. In regards to the issue of entitlement to service connection for hepatitis, in the March 2012 remand, the Board requested that an examination be provided and opinion as to whether "the Veteran [has] a current diagnosis of hepatitis A, B, or C or has hepatitis been manifested at anytime during the course of the appeal (i.e. at any time since March 2005)" be obtained. (emphasis added) A VA examination was conducted in May 2012. The examiner, in rendering an opinion, stated that the Veteran does not have a current diagnosis of hepatitis C and noted laboratory findings of April 2012. However, the examiner did not provide an opinion as to whether the Veteran has had an active diagnosis of hepatitis A, B or C at anytime during the course of the appeal. Accordingly, the claim must be remanded for compliance with the Board's directive. In regards to the issue of entitlement to service connection for an acquired psychiatric disorder, as noted above, VA outpatient treatment records are to be associated with the claim file. As there may be evidence relevant to this issue contained therein, the Board will hold the issue in abeyance until the outstanding treatment records have been associated with the claim file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all outstanding VA treatment records for the Veteran's treatment for any psychiatric condition, bilateral leg condition and hepatitis from April 2007 to the present. 2. After the above development has been completed, the RO/AMC should forward the claim file to the May 2012 VA examiner who conducted the examination regarding hepatitis and ask that, after a thorough review of the claim file to include any Virtual VA files, the examiner state whether the Veteran had an active diagnosis of hepatitis A, B, or C or at any time during the course of the appeal (i.e. at any time since March 2005). If an active diagnosis is confirmed at any time during the course of the appeal, the examiner should provide an opinion as to whether is it at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's diagnosis, or residuals thereof, was/were incurred during his period of active service; and/or whether it is at least as likely as not (i.e. 50 percent or greater probability) the result of the Veteran's admitted use of IV drugs. A complete and thorough rationale for all opinions expressed should be provided, and the report should include a discussion of the Veteran's documented medical history and assertions. 3. Thereafter, the RO/AMC should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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. 2012). _________________________________________________ DAVID L. WIGHT 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) (2012).