Citation Nr: 1304152 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-16 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for any acquired psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from August 1979 to November 1982 and from July 1998 to March 1999. He also served with Reserve components at various times. He is a Persian Gulf War veteran. This appeal arises to the Board of Veterans' Appeals (Board) from December 2006 and later rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The December 2006 rating decision, in pertinent part, denied service connection for post-traumatic stress disorder (PTSD). In March 2009, the RO denied service connection for residuals of gall bladder removal. The Veteran submitted a notice of disagreement (hereinafter: NOD) in July 2011. In August 2011, the RO issued a rating decision that determined that the NOD was untimely. The Veteran did not appeal that decision. Because the Veteran's NOD was untimely, the Board does not have jurisdiction over the claim of service connection for residuals of gall bladder removal. See Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"). In October 2012, the Veteran testified before the undersigned at a video-conference hearing. A transcript of this proceeding has been included in the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran and his representative of any further action required. REMAND This Persian Gulf War veteran seeks service connection for psychiatric symptoms. VA must consider all psychiatric symptoms and potential theories of service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant seeks service connection for the symptoms regardless of how those symptoms are diagnosed or labeled); Douglas v Derwinski, 2 Vet. App. 435 (1992) (all pertinent legal theories must be considered). The Veteran's service treatment reports are missing and cannot be located. In January 2002, the RO granted service connection for a painful lower back disability that was incurred during active service (see claims files, Vol 1). Private hospital records reflect hospitalization in December 2002 for delusional behavior. A diagnosis of chronic paranoid schizophrenia was offered. In January 2003, a diagnosis of psychotic disorder was offered. After a month of private psychiatric hospitalization, the Veteran was transferred to Fayetteville VA Medical Center. A February 2003 VA hospital report notes no further evidence of a psychotic disorder. The diagnoses were depression and adjustment disorder. No etiology was offered. In March 2003, the Veteran requested service connection for depression that he claimed was caused by his service-connected low back disability. An April 2003 psychological evaluation performed for the State of North Carolina disability services reflects that the Veteran reported that he was psychiatrically normal until he received his anthrax shot in the service (see claims files, Vol 2). The diagnoses were chronic paranoid schizophrenia; and, major depression, secondary to schizophrenia. An August 2003 VA report notes a diagnosis of schizoaffective disorder, depressed. In February 2004, the RO denied service connection for paranoid schizophrenia. In April 2005, the Veteran requested that undiagnosed illnesses be added to his claims (see claims files, Vol 3). In June 2005, he submitted supporting documentation that states, "At least six separate studies done in three countries now link the anthrax vaccine to Gulf War Syndrome." In March 2006, the Veteran added PTSD to his claim. He reported that a diagnosis of PTSD had been recently given at Pitt Memorial Hospital. He submitted Pitt Memorial Hospital records. Among these is a February 2006 report that mentions a history of PTSD. A December 5, 2006 VA general medical compensation examination report referred the reader to a neuropsychiatric evaluation report for the results of a psychiatric evaluation that had been performed that day; however, there is no psychiatric report in the claims files. Because this is a VA record, it must be obtained before a final determination can be made in this case. See Bell v. Derwinski, 2 Vet. App. 611 (1992). A December 2006 VA neurology compensation examination report reflects a diagnosis of tension headaches, but no psychiatric symptoms were addressed. In May 2007, the Veteran submitted a list of PTSD stressors. He also submitted a March 2007-dated report from private psychiatrist, J. Y., which mentions, but does not diagnose, a history of military-service connected PTSD. An April 2008 VA out-patient treatment report notes chronic neck and back pain and depression. A May 2008 VA out-patient treatment report notes an impression of PTSD. The Veteran was briefly hospitalized in July 2008 at Lenoir Hospital. The discharge diagnoses include PTSD. A November 2009 private cardiology consultation mentions that the Veteran's PTSD is stable. In October 2012, the Veteran testified before the undersigned at a video-conference hearing that he was struck in the head during active service and possibly received a brain injury. He felt that this was a PTSD stressor. The case is remanded to the AMC for the following action: 1. Conduct a search for the report of the neuropsychiatric evaluation reportedly conducted on December 5, 2006. All efforts to obtain this report must be documented in the claims folder. Efforts to obtain this record will end only when it is concluded that the record does not exist or that further efforts to obtain it would be futile. If the report cannot be found, a formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. See 38 C.F.R. § 3.159(c)(2) (2012). 2. The AMC should make arrangements for an appropriate examination to determine the nature and etiology of all claimed psychiatric and neuropsychological signs and symptoms. The claims file should be made available to the physician for review. The physician is asked to review the claims file, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis or diagnoses, if forthcoming. The physician is specifically asked to address: (1) whether the Veteran has PTSD and, if so, identify the claimed stressor; (2) whether the Veteran has any depression, and, if so, identify the etiology of it; (3) whether the Veteran has paranoid schizophrenia and, if so, is it at least as likely as not (50 percent or greater possibility) related to active military service? (4) whether it is at least as likely as not that any psychiatric sign or symptom is related to an anthrax vaccine; and, (5) whether there is any other neuropsychological sign or symptom that cannot be attributed to any diagnosis offered in this case. The physician should offer a rationale for any conclusion in a legible report. If an opinion cannot be reached without resorting to mere speculation, this must also be fully explained. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the record must indicate whether the notification letter was returned as undeliverable. 4. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the claim. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice. The Veteran 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 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). _________________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).