Citation Nr: 1309082 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 94-49 418 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder manifested by allergies and headaches. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September to December 1964. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision of the RO that determined that new and material evidence had not been received to reopen the Veteran's previously denied claims of service connection for allergies and headaches. In August 1998, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. During the course of the appeal the jurisdiction over the case was transferred to the RO in Winston-Salem, North Carolina. In a January 1999 decision, the Board determined that new and material evidence had been submitted to reopen the claims and remanded the case to the RO for further development of the record. In a September 2001 decision, the Board denied the Veteran's reopened claims of service connection for allergies and headaches. Thereafter, the Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). By a single-judge Order of the Court in March 2003, the September 2001 Board decision was vacated and remanded to the Board. The Secretary appealed the March 2003 Court Order to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In May 2004, the Federal Circuit granted the Secretary's motion to vacate the Court's March 2003 decision and remand for further proceedings consistent with Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In a July 2004 Court Order, the Secretary's motion to stay proceedings was denied and the September 2001 Board decision was vacated and remanded to the Board for readjudication. In September 2008 and December 2009, the Board remanded the case for additional development. In June 2011, the Board denied the claims of service connection for allergies and for headaches. The Veteran appealed that decision to Court. In an August 2012 Memorandum Decision, the Court vacated the June 2011 Board decision and remanded the matter back to the Board for development consistent with the Decision. Pursuant to the August 2012 Memorandum Decision and the Court's reliance on Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue on appeal has been recharacterized to include a claim of service connection for a psychiatric disorder. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new pertinent records were found therein. The appeal is being remanded to the RO, as the Veteran is represented by a private attorney. REMAND In light of points raised in the Court's August 2012 Memorandum Decision, and the Board's review of the claims file, further RO action on the claim on appeal is warranted. The Court vacated the Board's June 2011 decision on two bases. First, the Court determined that the Board impermissibly limited the scope of the Veteran's claim by not including a psychiatric disorder. In so finding, the Court cited particular evidence showing the presence of a current psychiatric disorder, as well as other evidence suggestive of a possible relationship between psychiatric symptoms and somatic symptoms. The Court determined that this was sufficient to raise the issue of whether the Veteran's allergies and headaches were caused by an underlying, diagnosed mental disorder, and as such, the Board was required to broadly construe the claim. In a January 2013 Brief, the Veteran's attorney requested that the matter be remanded to the RO for their adjudication of the expanded claim. Additionally, the Court found that the Board's determination that VA satisfied its duty to assist was clearly erroneous. Specifically, the Court directed the Board to schedule a VA examination to address the etiology of his mental disorders and somatic symptoms. In so finding, the Court noted the March 2000 and January 2010 VA examinations of record were inadequate to the extent that they do not address any relationship between the Veteran's psychiatric symptoms and his allergies and headaches. Finally, in the January 2013 Brief, the Veteran's attorney requested that VA obtain records from Yale New Haven Hospital, to include the outpatient clinic. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." VA must attempt to obtain these records. Accordingly, this matter is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide authorization forms necessary to allow the RO to obtain records from Yale New Haven Hospital, to include outpatient clinic records. Thereafter, the RO should attempt to obtain those records. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and the compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 2. Thereafter, the RO should have the Veteran scheduled for a VA psychiatric examination to address the nature and likely etiology of his psychiatric disorder manifested by allergies and headaches. The examiner is to be provided access to the claims folder and Virtual VA as needed. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a psychiatric disorder, manifested by allergies and headaches, due to an injury or other event or incident of his period of active service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the examination, the RO should review the examination report to ensure it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing all indicated development, the RO then should readjudicate the claim, expanded to include that of service connection for a psychiatric disorder, in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WIKKINS 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).