Citation Nr: 1306996 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-23 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (originally claimed as a bipolar disorder), to include bipolar disorder, panic disorder, generalized anxiety disorder, and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had military service from June 1978 to August 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs Regional Office (RO) in Denver, Colorado. By that rating decision, the RO denied entitlement to service connection for a bipolar disorder and right knee disorder. In March 2011, a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the Veteran's claims file. The Board remanded this case in August 2012. It returns now for appellate consideration. Pursuant to the Board's August 2012 remand, a January 2013 rating decision granted the Veteran's claim for a right knee disability (right knee degenerative joint disease, with medial and lateral tears status post partial medial and lateral meniscectomies) and assigned a 10 percent rating, effective November 30, 2009. The Veteran has not submitted a notice of disagreement with this decision. Accordingly, this issue is not currently before the Board, and the Board's review here is limited to the acquired psychiatric disorder claim. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Additional development is needed prior to the disposition of the Veteran's claim. VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development. In the August 2012 remand, the Board noted that in denying entitlement to service connection for bipolar disorder in the appealed January 2010 rating action, as well as an April 2010 Statement of the Case and September 2010 and January 2011 Supplemental Statements of the Case, the RO indicated that it had electronically reviewed "VAMC records from 1999 to the present." The RO also referenced "VA outpatient treatment records, Denver VAMC, from September 2010 to January 2011." However, a review of the physical claims files, as well as a search of the Veteran's electronic claims file via Virtual VA, reflected that the only VA treatment records available to the Board for physical review were treatment records from the Denver Colorado, VA Medical Center (VAMC), dating from October 2008 to November 2010. Accordingly, the Board requested that VAMC treatment records, dating from 1999 to October 2008 and November 2010 to January 2011, from the Denver, Colorado VAMC be physically associated with the claims file. However, a review of the Veteran's paper claims file shows that the requested VA treatment records have not been associated with the file. A review of the Veteran's electronic file through the "Virtual VA" system shows that records dating from June 29, 2007 to October 30, 2008, and from November 1, 2010 to August 10, 2012 are the only records that have been associated with the Veteran's electronic file. Under Stegall v. West, 11 Vet. App. 268 (1998), a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders. The Board regrets any further delay in this case. However, given the circumstances, the Board has no recourse but to again remand the case. In addition, pursuant to the Board's August 2012 remand, the Veteran underwent a VA DBQ (Disability Benefits Questionnaire) psychiatric mental disorders examination in September 2012 at which time the examiner indicated that the Veteran's claims file and computer file were reviewed. However, it is unclear whether that review included review of the VA treatment records that were requested by the August 2012 remand. Accordingly, the RO should review the Veteran's computer file to see if VA treatment records dating from 1999 to October 2008 and November 2010 to January 2011 were made available to and reviewed by the September 2012 examiner. If the RO determines that these records were not available at the time of the September 2012 examination, these records must be made available to and reviewed by the examiner and an addendum to the September 2012 examination must be obtained. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all treatment records, dating from 1999 to June 2007, from the VAMC in Denver, Colorado, which are referenced in the January 2010 appealed rating action, as well as an April 2010 Statement of the Case, and September 2010 and January 2011 Supplemental Statement of the Cases. Any outstanding treatment records obtained must be physically associated with the paper claims file or with the electronic file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. 2. The RO or AMC must determine whether the Veteran's VA treatment records dating from 1999 to October 2008 and November 2010 to January 2011, from the VAMC in Denver, Colorado were made available to and reviewed by the September 2012 examiner. If the RO or AMC determines that these records were not available to and reviewed by the September 2012 examiner, then the RO or AMC should forward the Veteran's claims folder and a copy of the VA treatment records dating from 1999 to October 2008 and November 2010 to January 2011, to the examiner who conducted the September 2012 examination, or to a VA examiner of appropriate expertise (if the September 2012 examiner is no longer available), and request that he or she prepare an addendum to the medical opinion that was provided in the September 2012 VA examination report. 3. Thereafter, the RO or the AMC should undertake any other development deemed appropriate. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MARK W. GREENSTREET 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).