Citation Nr: 1316388 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-00 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sister (M.W.) ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1979. He also reportedly had duty with the Army National Guard/Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2013, the Veteran testified at a Travel Board hearing before the undersigned; a transcript of the hearing is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. 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 this case, the Veteran asserts that his current psychiatric disorder manifested in service and was caused by the stress of military life. He claims he drank alcohol and used drugs during service, which were prodromal symptoms of the psychiatric disorder. During the Board hearing the Veteran testified that he had informal disciplinary problems during service and that he requested treatment for alcohol problems, but was denied. The Veteran's sister (M.W.) testified that he was drastically changed when he returned from active duty. She said that he was moody, drank and used drugs, and spent most of the time in his room. She said he could not keep a job and had difficulty coping. She reported that the Veteran was hospitalized in 1983, about six months after his Reserve service ended, and that he was diagnosed with schizophrenia. Initially, the Board notes that the Veteran's Army National Guard/Reserve records and military personnel records have not been obtained. He asserts that these records may contain references to a psychiatric disorder or prodromal symptoms. The law provides that VA shall make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized VA to obtain. 38 U.S.C.A. § 5103(A)(b)(1). See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Hence, a remanded is necessary so that an attempt can be made to obtain these records. Regarding the 1983 hospitalization at the county hospital, the Veteran's sister reported that attempts to obtain the records had been unsuccessful. At the Board hearing, the undersigned granted a 60-day abeyance so they could make additional attempts to obtain these records; however, no additional evidence was submitted. On remand, VA should offer assistance to the Veteran in obtaining these records. Regarding the 1983 hospitalization at the Loma Linda VAMC, the RO made two requests for all VA hospital and outpatient treatment records from April 1979, to include discharge summaries. The Loma Linda VAMC provided all available records, which included records dated from February 1992 to November 2000. In the November 2009 Statement of the Case, the RO noted that earlier records could not be located; however, pursuant to 38 C.F.R. § 3.159(e), the Veteran should also be provided notice of the efforts VA made to obtain the records; a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and a notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e) (2012). Regarding records from the Social Security Administration, these records were received on a compact disc in May 2009. On remand, the RO/AMC should either associate the records with the Virtual VA electronic file or print them and associate them with the Veteran's paper claims file. A review of the paper claims file includes VA mental health treatment records from the Loma Linda VAMC dated through December 2005. A note in the file indicates that the reviewer did not print any records after October 2006 because the records were too extensive. Rather, he or she indicated that they reviewed the records online. The Board notes that there are no records dated after December 2005 in either the paper claims file or the Virtual VA electronic file. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, on remand all outstanding records of VA treatment since December 2005 should be obtained and associated with either the paper claims file or the Virtual VA electronic file. The Board also finds that a VA examination is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83; see also Trafter v. Shinseki, No. 10-3605, 2013 WL 1789774, at *10 (Vet. App. Apr. 29, 2013). In this case, the Veteran testified that he began having problems in service due to stress. His sister reported that he had mental and psychiatric problems when he returned from service, including mood swings, depression, and social isolation. They are competent to report symptoms that they personally observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Treatment records indicate that he has current psychiatric disabilities, which have been variously diagnosed. Given the competent lay testimony and the medical records documenting current disability, the Board finds and that there is sufficient evidence indicating that the Veteran's current psychiatric problems may be associated with his military service; however, the record does not contain sufficient medical evidence to make a decision on the claim. Therefore, the Board finds that a VA examination and medical opinion is needed to fairly resolve the claim. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain a copy of the Veteran's military personnel records for his period of service, as well as any and all treatment or personnel records from reserve duty. 2. The RO/AMC should take appropriate action to obtain and associate with the claims file medical records from the county facility that treated the Veteran for psychiatric problems in 1983. Loma Linda should be contacted in an attempt to obtain pertinent records. If the records appear to have been archived, attempts to obtain them should be undertaken. All efforts undertaken pursuant to this paragraph must be in writing and documented in the claims file. Such efforts shall include requesting that the Veteran complete an authorization form to release any private records (VA Form 21-4142). If any relevant records cannot be obtained, notify the Veteran in accordance with 38 C.F.R. § 3.159(e) 3. The RO/AMC should obtain all outstanding records of evaluation and/or treatment for the Veteran's psychiatric disorder from the Loma Linda VAMC since December 2005. All records/responses received should be associated with the paper claims file or the Virtual VA electronic file. 4. If records from Loma Linda are not obtained, in accordance with 38 C.F.R. § 3.159(e), notify the Veteran that VA was unable to obtain any treatment records from the Loma Linda VAMC dated earlier than February 1992, to specifically include his reported hospitalization for psychiatric problems in 1983. 5. From the compact disc received from the Social Security Administration in May 2009, either associate the records with the Virtual VA electronic file or print and associate them with the paper claims file. 6. After all available records and/or responses from each contacted entity are associated with the paper claims file or the Virtual VA electronic file, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed psychiatric disorder. All indicated tests should be accomplished. All pertinent symptomatology and findings should be reported in detail. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the report of the examiner. After examination of the Veteran and review of the entire record, the examiner is requested to identify any current psychiatric disorder. With respect to each diagnosed disorder, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disorder initially manifested in service, within one year of service, or is otherwise related to service. The medical rationale for any opinion expressed must be provided. In rendering this opinion, the examiner is asked to consider and address the Veteran's lay statements and reported medical history. The discussion should include whether use of alcohol during service may have been a prodromal symptom of any psychiatric disorder found. 7. After completing any additional development deemed necessary, readjudicate the claim on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case, which addresses all of the evidence obtained after the issuance of the Statement of the Case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if 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 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). _________________________________________________ MICHAEL D. LYON 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).