Citation Nr: 1317152	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  09-05 149	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a back disability. 

2.  Entitlement to service connection for an acquired psychiatric disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel



INTRODUCTION

The Veteran had active service from February 1966 to February 1968, with subsequent service in the Army National Guard.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  
 

REMAND

The Board remanded the issues for further development in September 2011 to request medical releases for all private medical treatment, obtain any outstanding VA treatment records, and to provide the Veteran with VA examinations.  The Veteran submitted new authorizations for release of medical records in July 2012, dated after the supplemental statement of the case, also dated July 2012.  Due to the timing of the receipt of these releases, the most recent medical records from these physicians were not obtained.  Additionally, the record does not show any recent VA treatment records, showing treatment dating through 2007.  Without any documented efforts to obtain these records, a review of the record indicates that the Board's directives were not substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Therefore, the claims must be remanded to obtain the outstanding VA and private treatment records.  

The Board also notes that the VA psychiatric examiner determined that the Veteran does not currently have an anxiety disorder.  The records show consistent treatment and diagnosis of an anxiety disorder during the pendency of the appeal.  Although the Veteran may not currently have a diagnosis, the examiner must provide an opinion regarding the etiology of the past diagnosis. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved).  Accordingly, the Board finds that a supplemental opinion is in order regarding the Veteran's psychiatric disability claim.

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back and psychiatric symptoms.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

2.  VA should attempt to obtain and associate with the claims file all private treatment records from the providers noted in the authorizations submitted by the Veteran in July 2012.  All attempts to obtain these records should be documented.  

3.  VA should obtain and associate with the claims file all outstanding VA treatment records.  If such records cannot be obtained or if no such records exist, the RO should document such findings.  

4.  After associating all pertinent outstanding records with the claims file, return the claims file to the April 2012 VA psychiatric examiner.  If the examiner is not available, then schedule the Veteran for a VA psychiatric examination.  The examiner should review the claims file and address the following question:

Is it at least as likely as not that the Veteran's diagnosed anxiety disorder had its onset during or was causally related to service?  The examiner should address the Veteran's competent statements regarding his anxiety while serving in a tank and his current anxiety attacks that involve claustrophobia.

All findings and conclusions should be set forth in a legible report.

3.  Then, readjudicate the appeal.  If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the 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).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs