Citation Nr: 1301822 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-02 488 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Among other action, service connection for bipolar disorder (also claimed as anxiety and depression) was denied therein. The Veteran appealed this determination. During the course of the appeal, jurisdiction was transferred to the RO in Pittsburgh, Pennsylvania. In September 2009, a Travel Board hearing was convened regarding this matter before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. This matter was remanded by the Board for additional development in January 2012. Based on review of the Veteran's claims file as well as his Virtual VA "eFolder," it once again 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. Of note at this juncture, a claimant generally cannot be expected to precisely delineate the diagnosis of his mental illness because he lacks medical expertise. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran files a claim for the affliction his mental illness, whatever that illness is, causes him, so VA must construe the claim to include any and all of the Veteran's currently diagnosed psychiatric disorders. Id. To be this encompassing, this matter has been recharacterized as one concerning bipolar disorder to one concerning an acquired psychiatric disorder which includes bipolar disorder as well as any other claimed or diagnosed mental disorder. REMAND This matter unfortunately must be remanded. Although the Board sincerely regrets the delay this will cause, adjudication cannot proceed at this time. Additional development is needed so that there is a complete record upon which to render a final determination. I. Records VA has a duty to assist a claimant in substantiating his claim for VA benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This duty includes making reasonable efforts to help procure pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Once a claimant has authorized the release of relevant non-Federal (private) records to VA, reasonable efforts to help obtain them generally consist of an initial request and, if they are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if VA is unable to obtain requested records. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). Such notification shall include an explanation that the Veteran ultimately is responsible for providing the records. 38 C.F.R. § 3.159(e)(1) (2012). It may be provided at the same time the follow-up request is made. Id. As directed by the Board's January 2012 remand, the Veteran was sent VA Form 21-4142 so he could authorize the release to VA of his treatment records dated since March 2007 from Chartiers Center Hospital. He subsequently submitted the form. VA accordingly requested the aforementioned records in March 2012. At the same time, the Veteran was notified via letter that it is his responsibility to see that VA receives the records. Chartiers Center Hospital responded later in March 2012 that the Veteran's VA Form 21-4142 was deficient. The date of the records requested was deemed inaccurate. It therefore was noted that another authorization form with the dates from 2007 through present was needed. The signature of a witness on the form f was noted as necessary. In May 2012, a supplemental statement of the case (SSOC) readjudicating this matter was issued by the AMC. The March 2012 response from Chartiers Center Hospital was listed under evidence, but no discussion of it was made. The aforementioned shows that an initial request to Chartiers Center Hospital for the Veteran's treatment records was made as required. However, no attempt has been made to correct the authorization deficiencies identified by the facility. The Veteran indeed has not been informed of these deficiencies, whether in the SSOC or otherwise, and therefore has not had an opportunity to submit another VA Form 21-4142 righting them. Lacking this form, no follow-up request has been made to Chartiers Center Hospital for his treatment records. Notification finally was provided to him that he bears the burden for ensuring VA receives these records. Yet it was premature since there has not been a follow-up request. In sum, there has not been compliance with VA's duty to assist with respect to these records for several reasons. Appropriate action must be undertaken so that there is compliance. This requires a remand. II. Hearing The Board shall decide an appeal only after affording the appellant an opportunity for a hearing. 38 U.S.C.A. § 7107(b) (West 2002). In other words, a hearing on appeal will be granted if a Veteran or his representative expresses a desire to appear in person. 38 C.F.R. § 20.700(a) (2012). Hearings may be requested when submitting the substantive appeal (VA Form 9) or, subject to the restrictions of 38 C.F.R. § 20.1304 (2012), at any time thereafter. 38 C.F.R. § 20.703 (2012). 38 C.F.R. § 20.1304 (2012) provides a 90 day period following the mailing of notice of certification to the Board during which a hearing may be requested. As noted above, a Travel Board hearing was conducted in September 2009. Notice was mailed to the Veteran that this matter had been recertified to the Board in June 2012. He requested a Video Conference hearing in an August 2012 statement. His representative accordingly submitted a Motion to Remand for such a hearing in September 2012. The aforementioned shows that the Veteran's request fell within the 90 day period following the June 2012 notification of recertification to the Board. This request therefore was timely. One hearing already has been afforded to the Veteran. However, it occurred over three years ago and accordingly is not current. There further is no prohibition against holding more than one hearing regarding a matter. Indeed, a claimant is entitled to one hearing by the aforementioned statute and regulation but is not limited to one hearing by any statute or regulation. The Veteran's request thus is granted, and another hearing in the form of a Video Conference shall be scheduled. A remand is warranted since the RO schedules this type of hearing. In scheduling a Video Conference hearing concerning this matter, necessary action shall be undertaken to ensure that the undersigned Veterans Law Judge, if at all possible, conducts the hearing. This is because the Veterans Law Judge who conducts a hearing on a given matter shall participate in making the final determination with respect to that matter. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). The undersigned Veterans Law Judge already has held a hearing. If the Video Conference hearing also is held before the undersigned, the final determination on this matter will be from the undersigned. Yet if the Video Conference hearing is held before a different Veterans Law Judge, both must participate in rendering the final determination on this matter. A panel of Veterans Law Judges, which cannot be less than three, therefore would be required. See 38 U.S.C.A. § 7102(a) (West 2002). The Veteran then would have the opportunity for a hearing before the third Veterans Law Judge, as he entitled to a hearing before all Veterans Law Judges who ultimately will make the final determination. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran regarding his treatment records dated from March 2007 to present from Chartiers Center Hospital. Request that he submit another VA Form 21-4142 form authorizing the release of these records to VA. Inform him that this form must be completed in its entirety, to include specifically the dates of treatment, hospitalization, or care (which should read 2007 to present) and the witness signature blocks, as this was why his previous form was found deficient by the aforementioned facility. If the completed form is provided, request the records initially with a follow-up request as necessary. Any records obtained shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if the records are not obtained when the follow-up request is made or thereafter. Document the claims file or "eFolder" as appropriate regarding this paragraph. 2. Then review the Veteran's claims file and undertake any additional development indicated. This shall include requesting VA treatment records, if any, regarding him. This also shall include requesting that he authorize the release of any additional pertinent private records regarding him identified during the course of the remand or alternatively provide them to VA himself. This finally shall include, if such authorization is provided, requesting the records. Any records received shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if any records are not received. Document the claims file or "eFolder" as appropriate regarding this paragraph. Additional VA examination may be requested, if deemed warranted. 3. After completion of the above development, readjudicate the Veteran's entitlement to service connection for an acquired psychiatric disorder. If this benefit is not granted, he and his representative shall be provided with a supplemental statement of the case (SSOC) and afforded the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." 4. Also if the aforementioned benefit is not granted, schedule the Veteran for a Video Conference hearing before the Board at the earliest available opportunity. All necessary action shall be undertaken to ensure that the undersigned Veterans Law Judge, if at all possible, conducts this hearing. Notification of the date and time of the hearing shall be sent to the Veteran at his last address of record as well as to his representative. 5. After the hearing, or after the Veteran's failure to appear for or cancellation of the hearing, process this matter for return to the Board in accordance with established procedure. The Veteran has the right to submit additional evidence and argument on the issue 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). _________________________________________________ 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) (2012).