Citation Nr: 1307307 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-12 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder. REPRESENTATION Appellant represented by: Katrina J. Eagle, Esq. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for PTSD. The Veteran presented testimony at a hearing before the undersigned at the RO in April 2011. A transcript of the hearing is associated with the Veteran's claims folder. In November 2011, the Board remanded the appeal for further development. Although, the Veteran claimed entitlement to service connection for PTSD, other bipolar disorder has also been identified. The Board will consider entitlement to service connection for a psychiatric disability regardless of diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran was previously represented by a service organization. In December 2012, the Board received his appointment of a private attorney as his representative. The Board has accepted his motion to change representatives. See 38 C.F.R. § 20.1304 (2012). 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 In its June 2011 remand, the Board instructed the agency of original jurisdiction to obtain the Veteran's private treatment records from Sioux San Indian Health Services Hospital and St. Joseph's Hospital as identified during the February 1998 VA examination and August 1997 VA discharge summary. The Veteran submitted a November 2011 statement in which he reported that he had contacted each of these facilities and was told that they never received any such request. Letters dated October 2011 indicate that the RO did indeed request the records. However, it does not appear that any response was received. Efforts to obtain records in the custody of a Federal entity must continue until they are received, unless it is reasonably certain that they do not exist or that further efforts would be futile. Additionally, the Board notes that the RO sent a December 2011 email to the U.S. Special Operations Command (USSOCOM) requesting verification of the Veteran's (and his buddy T.K.'s) presence in Korea as part of Eagle Foal as well as verification of the alleged in-service hit and run incident. The responses received in January 2012 were negative. It is clear that it was unable to corroborate the alleged in-service stressor. However, it is unclear as to whether the negative responses included an inability to corroborate the Veteran and his buddy's presence in Korea in general. The RO should contact USSOCOM to clarify whether it can confirm the presence of the Veteran and/or T.K. in Korea. Finally, in its June 2011 remand, the Board instructed the RO to schedule the Veteran for a VA medical examination for the purpose of obtaining a medical opinion regarding the etiology of the Veteran's PTSD and bipolar disorder. The Veteran underwent a VA examination in October 2012. The examiner diagnosed PTSD due to military stressors (which have yet to be verified) and bipolar disorder secondary to PTSD. Since service connection for PTSD has not been established, service connection for bipolar disorder cannot be established as secondary to PTSD. However, the Board noted that the Veteran's service records reflect that he had behavioral difficulties as shown by a court martial and reports of alcohol abuse. Consequently, it appears that the Veteran may have had a psychiatric disability (such as bipolar disorder) that could be linked to service on a direct basis, even in the absence of a verified stressor. The Board finds that the RO should obtain an addendum opinion in which the October 2012 examiner specifically opines whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disability (other than PTSD) began during or is causally related to service. In a December 2005 correspondence, the Veteran stated that he was receiving Social Security disability benefits for PTSD and Bipolar disorder. Since the precise nature of the Veteran's medical history may be relevant in the present case, the Veteran's SSA records should be obtained. VA has a duty to obtain SSA records when they may be relevant and VA has actual notice that the Veteran is receiving SSA benefits. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The Board acknowledges the December 2012 statement in which the Veteran's current representative contended that the record was currently sufficient to decide the matter, and that nothing would be gained by "more fruitless searches for long lost and likely irretrievable military records." At this point, a VA examiner has diagnosed PTSD attributed to a stressor that occurred while he was serving in Korea. The service department has been unable to verify the Veteran's service in Korea and the credibility of other evidence that he served in Korea has not yet been established. There is also no opinion as to whether any psychiatric disability is directly related to service. In addition, there are relevant records that remain outstanding. As such, the claim has not yet been substantiated and further efforts are required. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 3. The AOJ should obtain treatment records from Sioux San Indian Health Services Hospital and St. Joseph's Hospital as identified during the February 1998 VA examination and August 1997 VA discharge summary. 4. The RO should contact USSOCOM and verify whether the Veteran or T.K. served in Korea. 5. The AOJ should ask the examiner who provided the October 2012 VA examination to review the claims folder, including any records stored in an electronic format, and opine whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disability other than PTSD began during or is causally related to service. The examiner should discuss the Veteran's behavioral difficulties as shown by a court martial and reports of alcohol abuse. 6. If the claim remains denied, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and return the record to the Board, 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. 2011). _________________________________________________ Mark D. Hindin 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) (2011).