Citation Nr: 1319382 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-39 893 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from April 1981 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Subsequently, jurisdiction was transferred to the RO in New York, New York. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2010. The Board remanded this matter for additional development in October 2010. The Board has reviewed of the Veteran's claims file and the Virtual VA electronic file. This matter is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although the Board sincerely regrets the delay, more development is needed to ensure that the Veteran is afforded every possible consideration. VA has a duty to notify and a duty to assist him in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Reasonable efforts must be made by VA to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). When the existence of records that are not in the custody of the federal government is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). VA treatment records dated into October 2009 are of record. They document the Veteran's continued psychiatric treatment. It is inferred that there may be pertinent VA treatment records dated from October 2009 to present. However, there is no indication that those records have been requested by VA. Requests for the aforementioned records therefore must be made. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative further must be notified if the requests are unsuccessful. The available VA treatment records, specifically those dated from October 2008 to January 2009, reference the Veteran having applied for Social Security disability benefits. The disability or disabilities alleged in that application were not specified. Because those references were made in the context of psychiatric treatment, the likelihood that a psychiatric disability was alleged is significant. VA has made no requests for Social Security Administration (SSA) records. A request must be made when there is a reasonable possibility that the records are pertinent. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Requests for the Veteran's SSA records therefore must be made by VA on remand, with notification to the Veteran and his representative if they are not successful. The Veteran's VA treating psychiatrist indicated in a June 2007 letter that the Veteran has received some psychiatric treatment at the White Plains Vet Center. Those records have not been obtained and are needed to adjudicate this claim. The Veteran submitted an authorization for the release of private substance abuse treatment records from Blaisdell, located at the Rockland Psychiatric Center, and from Solutions (TC), who treated him while he was at the West County Jail, in November 2006. VA made no requests for records from those facilities because as he did not supply their addresses. There is no indication that he has been informed that no request for records was made because the information he provided was incomplete. Therefore, the Veteran must be requested to provide enough information to identify and locate his treatment records from Blaisdell and Solutions (TC). He further must be requested on remand to reauthorize their release to VA because authorizations are effective only for 180 days from the date of signature. In the alternative, he must be requested to supply the records himself. If he provides the information and reauthorization, a request for the treatment records must be made with notification to him and his representative if the records are not obtained. The Veteran indicated in December 2010 that "the CID Command Office" was investigating his MVA, which he now believed occurred on October 13, 1981. He provided case number 11-0469 in conjunction with that investigation. However, VA has requested no records from the Army Criminal Investigation Division (CID). That must be done on remand. The Veteran must be requested, if necessary, to authorize the release of the records to VA. Accordingly, the claim is REMANDED for the following action: 1. Obtain all VA treatment records regarding the Veteran from October 2009 to present and associate them with the claims file. 2. Request records concerning the Veteran's claim for benefits from SSA, including all disability decisions and the evidence upon which they were based. 3. Ask the Veteran to provide enough information to identify and locate, and to execute a release of treatment records from the White Plains Vet Center, Blaisdell at the Rockland Psychiatric Center, and Solutions (TC) at the West County Jail. Alternatively ask him to provide the records to VA himself. If enough information and authorization is provided, request the records with a follow-up request or requests as necessary. Associate all records received with the claims file. 4. Contact the Army (CID) and request investigation records regarding the Veteran (referencing case number 11-0469). If necessary, request that the Veteran authorize the release of the records to VA. Associate all records received with the claims file or Virtual VA electronic file. 5. If any requested are not received or are incomplete, notify the Veteran and his representative. Inform them that they can obtain and submit the records, and document the claims file that they were notified. 6. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran is advised that failure to report for any scheduled examination may result in denial of the benefits sought. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the issues that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law requires that all matters remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).