Citation Nr: 1304949 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 12-10 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service from January 1976 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified before the undersigned Veterans Law Judge at the RO in September 2012. A transcript of his hearing has been associated with the claims-file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 During his September 2012 hearing, the Veteran and his representative described that the Veteran experienced a documented decline in performance during service due in part to psychiatric problems manifesting at that time. The Veteran's representative read into the record the portions of the contents of what was described as a written statement from the Veteran's staff sergeant, "Sergeant Rolls," dated September 22, 1977. As read by the representative, the statement indicates that the Veteran's motivation and determination deteriorated during military service, that his performance deteriorated in connection with family problems, that the Veteran had been seeing a chaplain, and that the Veteran was seeking to leave the service. The Veteran's representative essentially argued that the Veteran's documented behavior and decline in performance during service constitute pertinent manifestations of acquired psychiatric disability that may serve as the basis of a grant of service connection. However, the Board's review of the Veteran's claims-file (to include the electronic "Virtual VA" claims-file) has failed to identify the referenced September 1977 statement from the Veteran's staff sergeant. To the extent that the statement appears to be pertinent and is a featured element of the Veteran's argument, its absence from the claims-file is problematic. Although the Veteran's representative read from the written statement during the Board hearing, it is unclear whether the statement was ever submitted for inclusion in the claims-file or has otherwise been misplaced. In any event, in light of the nature of the Veteran's contentions and theory of entitlement in this case, it appears that the Veteran's complete set of service personnel records may be pertinent to this case and to completing informed appellate review of the Veteran's contentions. The claims-file does not currently contain the Veteran's service personnel records. The Board finds that it is appropriate to remand this case to obtain the Veteran's service personnel records so that the potentially pertinent evidence may be reviewed in connection with adjudication of this claim. During this remand, the RO/AMC will have the opportunity to take appropriate action to clarify whether the Veteran wishes to add to the record a copy of the September 1977 statement from "Sergeant Rolls" discussed during the Board hearing (if such a statement is not already of record once the service personnel records have been obtained). The Veteran's testimony at the Board hearing also indicated that he had been receiving pertinent psychiatric treatment at a VA facility (apparently in Brockton) for approximately 20 years. The Veteran and his representative expressed that the Veteran's primary psychiatric care provider at VA during that period had recently retired, but had expressed willingness to provide the Veteran with a statement pertinent to this claim. The Veteran and his representative expressed that they expected to submit such a statement, but such a statement has not been received as of this time. The Board notes that the VA psychiatric reports of record only cover a short recent period, and the overwhelming majority of the described period of 20 years of VA psychiatric treatment is not currently documented in the claims file. The Board also notes that the Veteran's testimony indicates that he originally sought psychiatric treatment at a VA facility in Jamaica Plains in approximately 1980 that is not documented in the claims-file. As VA medical records are constructively of record and must be obtained, the RO should obtain outstanding VA treatment records from the periods the Veteran has indicated he received pertinent VA treatment. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). During the processing of this remand, the Veteran will have the opportunity to submit a medical opinion from his now-retired VA psychiatric caregiver if he chooses. The evidence currently of record indicates several distinct possible current psychiatric diagnoses (particularly in the VA treatment records contained in the Virtual VA claims-file) for the Veteran with indications raising potentially complex significant medical questions. The Veteran has also testified that he experienced pertinent manifestations of such disability during his active duty service. The appellant has not been afforded a VA examination addressing his claim of entitlement to service connection for an acquired psychiatric disability. The Board finds that a VA examination is warranted to address this issue, and would be helpful in facilitating fully informed appellate review of the issue. The Board notes that recent case law has held that 38 C.F.R. § 3.159(c)(4)(C) establishes a low threshold for satisfying the requirements to trigger the Secretary's duty to assist by providing a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Board finds that the McLendon criteria appear to have been met in this case. The appellant is competent to report the lay-observable symptoms of psychiatric distress during service, and he has testified that such occurred in this case. Under the circumstances, the Board finds that a VA examination with medical opinion is warranted for the issue of entitlement to service connection for an acquired psychiatric disability. Such an examination may be helpful in addressing the significance of any new evidence obtained during the processing of this remand and in addressing the essential etiological questions central to this appeal. Finally, the Board observes that some of the written correspondence from the Veteran's attorney (including correspondence dated in May 2011) refers to the Veteran's claim for "Social Security Disability Benefits." This appears to be an error in which standardized letter language refers to a Social Security Disability Benefits claim when actually referring to the VA disability benefits claim currently on appeal; it does not appear that these references actually denote the existence of pertinent records in the custody of the Social Security Administration (SSA). However, during the processing of this remand the RO/AMC shall have the opportunity to obtain clarification from the Veteran concerning this matter; if there are pertinent records in the custody of the SSA, the RO/AMC should take appropriate steps to obtain them . Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should solicit clarification from the Veteran or his representative as to whether he has ever filed a claim for SSA disability benefits for psychiatric disability (as such a claim appears to have been erroneously indicated by some of the representative's written correspondence). If the RO/AMC learns that records pertinent to this appeal are in the custody of the SSA, the RO/AMC should take appropriate steps to obtain those records for review in this appeal. 2. The RO/AMC should take appropriate action to obtain the Veteran's service personnel records and associate them with the claims file for review in connection with this appeal. 3. After adding to the claims-file the service personnel records obtained in the development directed above, the RO/AMC should determine whether the claims-file includes the September 22, 1977, statement from Staff Sergeant Rolls described by the Veteran's representative at the Board hearing. If the statement is not included in the claims-file, the RO/AMC should take appropriate action to obtain a copy of the evidence from the Veteran, to include contacting the Veteran and/or his representative as appropriate to notify them that the service document read at the hearing is not currently available for review in the claims-file. The outcome of this attempt to account for the described September 1977 statement from Staff Sergeant Rolls should be clearly documented in the claims-file. 4. The RO/AMC should make arrangements to obtain all outstanding (not already contained in the claims-file) VA medical records of treatment the Veteran has received from the periods and the facilities identified by the Veteran in his September 2012 Board hearing testimony, including (a) the approximately 20-year period of psychiatric treatment at a VA facility in Brockton and (b) the treatment from approximately 1980 at a VA facility in Jamaica Plains. If any records sought are determined to be unavailable, this determination should be formally documented and explained in the claims-file. 5. After completion of the above, the RO should schedule the appellant for an appropriate VA examination to determine the nature and etiology of each current acquired psychiatric disability. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. All examination findings should be clearly reported. The examiner should clearly identify all current chronic acquired psychiatric diagnoses found in the Veteran's case. For each current chronic acquired psychiatric diagnosis, the examiner should clearly state whether it is at least as likely as not (a 50% or higher degree of probability) that the disability was caused or permanently aggravated during service. In answering this question, please address (a) all pertinent evidence from service including service treatment records and service personnel records), (b) all pre-service and post-service medical evidence, and (c) the Veteran's lay testimony concerning his pre-service, in-service, and post-service symptom history. A rationale should be furnished for all opinions. 6. After completion of the above, and any additional development the RO/AMC may deem necessary, the RO/AMC should then review the expanded record and readjudicate the claim on appeal. The RO/AMC should issue and an appropriate supplemental statement of the case and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ ROBERT E. SULLIVAN 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).