Citation Nr: 1314697 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 98-15 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1979 to September 1982. Thereafter he was a member of the National Guard from August 1983 to January 2002; he served on active duty from August 1991 to September 1994, and from February 2000 to October 2000. His last period of active duty included service in Bosnia in connection with Operation Joint Forge. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Waco, Texas that, in part, denied the Veteran's claim of entitlement to service connection for PTSD. In a March 2008 decision, the Board upheld the RO's denial of the appellant's service connection claim. The appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter Court). The Court issued a Memorandum Decision, in February 2010, and, in part, vacated that portion of the Board's decision that denied the appellant's claim of entitlement to service connection for PTSD. Thereafter the Board remanded the issue of entitlement to service connection for a psychiatric disorder for additional development in September 2010 and April 2012. The Board notes that the Veteran's case stems from a rating decision issued by the Waco RO. While the case was in appellate status, in April 2010, the Veteran asked that his case be transferred to the RO in Houston, Texas. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In January 2013 a statement was associated with the claims file stating: There are no records of this [V]eteran visiting any VA medical facility during the period: 11/01/2000 to 06/30/2001. According to CAPRI, Central Arkansas, HCS (located in Little Rock), is the only other VA medical facility that this [V]eteran has received care at. This care did not take place during the above listed time period. Careful review of the claims file does not reveal any VA treatment records from the Central Arkansas, HCS. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, the Board has not discretion and must remand the issue for attempts to be made to obtain and associate all VA treatment records regarding the Veteran from the Central Arkansas, HCS. Since the claims file is being returned it should be updated to include VA treatment records compiled since October 2011. See 38 C.F.R. § 3.159(c)(2); see also Bell, 2 Vet. App. at 611. VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121 (1991). As this remand orders attempts to obtain and associate with the claim file all records of clinical treatment regarding the Veteran from the VA Central Arkansas, HCS and all records of clinical treatment regarding the Veteran from VA dated subsequent to October 2011, if and only if additional relevant treatment records are received, the claims file must be returned to the examiner who performed the June 2012 examination for an addendum to be prepared regarding whether the Veteran has a psychiatric disorder that is related to his active service. Additional treatment records, including psychiatric treatment, were obtained and associated with the claims file subsequent to the issuance of the most recent Supplemental Statement of the Case. On remand, these records should be considered in a Supplemental Statement of the Case. See 38 C.F.R. § 19.31. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain all VA medical records pertaining to the Veteran from the VA Central Arkansas, HCS since October 2000 and all VA treatment records from any facility dated subsequent to October 2011. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. All attempts to obtain treatment records must be noted in the claims file. 2. Thereafter, if and only if additional treatment records have been obtained and associated with the claims file, return the report of the VA examination dated in June 2012 to the examiner who performed the examination so that an addendum to the earlier report may be compiled. The addendum should address the question of whether the Veteran has a psychiatric disorder related to his active service. If the examiner is unavailable or in the event the examiner determines that further examination of the Veteran is necessary, the Veteran should be scheduled for a VA medical examination for evaluation of the nature and etiology of his claimed psychiatric disorder. The Veteran's VA claims file must be furnished to the examiner or the examiner's designee for use in the study of this case. Following a review of the claims folder and any other examination undertaken, the examiner or other VA examiner is asked to address the following question, providing a complete rationale for the opinion expressed: Is it at least as likely as not (50 percent or greater probability) that any current psychiatric disorder of the Veteran originated in service or is otherwise attributable to the Veteran's military service or any event thereof? The VA examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus as to find against any nexus. More likely and as likely support the contended nexus; less likely weighs against the claim. 3. Thereafter, readjudicate the issue on appeal and if the benefit sought on appeal remains denied or not granted to the Veteran's satisfaction, the Veteran and his attorney should be provided with a supplemental statement of the case, which should contain notice of all relevant actions taken on the claim for benefits. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN 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).