Citation Nr: 1306187 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-18 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran (Appellant) ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from October 1972 to February 1973 and from June 1973 to January 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a November 2012 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board notes that the May 1994 rating decision, which denied service connection for a nervous condition, did not become final in light of the receipt of relevant service department records subsequent to the May 1994 rating decision. See 38 C.F.R. § 3.156(c) (2012). Thus, new and material evidence is not required to reopen the claim of entitlement to service connection for a psychiatric disorder, as the May 1994 rating decision did not become final. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran contends that his current psychiatric disorder(s) began during active service when his sister was murdered. His service personnel records confirm that his sister was, in fact, murdered in October 1974, and that the Veteran requested a hardship reassignment and/or discharge due to this occurrence. He also had multiple periods of absence without leave (AWOL) subsequent to his sister's murder. At the November 2012 Board hearing, the Veteran testified that he sought psychiatric treatment at the VA Medical Center in New Orleans in the 1980s. It does not appear that these records are associated with the claims file, nor does it appear that any attempt has been made to obtain them. The Board finds that VA's duty to assist includes attempting to obtain the VA treatment records from the 1980s. In addition, the Board finds that a VA psychiatric examination is necessary to determine whether any of the Veteran's current psychiatric disorders were caused or aggravated by events that occurred during active service. Although the Veteran has been afforded various VA examinations, none of the examiners has rendered an opinion as to the etiology of the Veteran's various psychiatric disorders. Next, the Board notes that service connection for PTSD was denied in an August 2003 rating decision. In September 2003, the Veteran submitted a statement indicating that he believed that his PTSD began during active service. The Board finds that the September 2003 statement can be reasonably interpreted as a notice of disagreement (NOD) with the denial of service connection for PTSD. However, the Veteran has not been furnished a Statement of the Case (SOC) which addresses the issue of entitlement to service connection for PTSD. In such cases, under judicial precedent, the appellate process was initiated by the NOD, and the appellant is entitled to an SOC on the issue. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issue of entitlement to service connection for PTSD must be remanded to the RO for additional action. Accordingly, the case is REMANDED for the following action: 1. Request any and all treatment records from the VA Medical Center in New Orleans from the 1970s and 1980s and associate the records with the claims file. A search of archived or retired records should be made. All attempts to procure the records should be documented in the file. If the records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his representative should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. After obtaining the above VA medical records or determining they are not available, afford the Veteran a VA psychiatric examination with an appropriate specialist or specialists to address the causation or etiology of his current psychiatric disorders. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. a. The examiner should first identify any and all current psychiatric disorders. b. The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's currently diagnosed psychiatric disorder(s) was/were incurred during or caused by active service - particularly the murder of the Veteran's sister in 1974? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If the opinions and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's claimed psychiatric disorders. 3. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 4. After conducting any necessary development, provide the Veteran and his representative with a Statement of the Case addressing the issue of entitlement to service connection for PTSD. He should be advised that a timely substantive appeal will be necessary to perfect the appeal to the Board. The RO should also assure that all VCAA notice and assistance requirements are satisfied. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ MICHELLE L. KANE 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).