Citation Nr: 1319595 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 11-00 212A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a left leg disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), intermittent explosive disorder, bipolar disorder, and a personality disorder. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from January 1978 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In February 2013, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities has been raised by the record, but has not been adjudicated by the RO. See February 2013 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Therefore, the Board does not have jurisdiction over the TDIU issue, and it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is necessary before the claims on appeal can be adjudicated. First, the Board notes that the claims file does not contain any VA treatment records dated since May 2011 from the VA Medical Center (VAMC) in Lyons, New Jersey. In addition, the Veteran has alleged the existence of earlier, additional VA treatment records not present in the claim folder. Specifically, the Veteran has stated that he received mental health counseling for anger management at the VAMC in Lyons, New Jersey in the early 1990s. See July 2009 VA psychological examination at pages 1-2. The Veteran also indicated that he was hospitalized for psychiatric problems in 1988 at the VAMC in Tampa, Florida. See Veteran's May 2009 statement; May 2008 VA mental health evaluation note. These records, if they still exist, are relevant to his acquired psychiatric disorder claim, yet there have been no attempts to obtain them. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Therefore, on remand, the RO/AMC should attempt to secure these outstanding VA treatment records. Second, the Veteran has stated and testified that he is in receipt of Social Security Administration (SSA) disability benefits. See February 2013 videoconference hearing testimony at page 11; February 2013 private psychiatric evaluation of Dr. R.G., MD., at page 3. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). Although disability determinations by SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits, and VA has a duty to assist the Veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). These federal SSA records are not on file; therefore, the RO/AMC should attempt to obtain them before deciding the service connection claims, as these records may be pertinent. Id. Third, in a May 2012 letter, the Veteran's representative cited an April 2011 private narrative report from J.D., Ph.D. (initials used to protect privacy), that dated the onset of the Veteran's current intermittent explosive disorder to the time of his military service. However, this April 2011 private narrative report does not appear to be in the claims file. A remand is required for the RO/AMC to contact the Veteran and his representative and ask that they submit this report or provide appropriate authorization for VA to secure this report, so that it can be associated with the claims file. Fourth, the Veteran should be scheduled for a VA examination to obtain a medical opinion in connection with his claim for a left leg disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). In this regard, the Board notes that the Veteran was afforded a VA examination in June 2009 during which he was diagnosed with left knee degenerative joint disease and left knee patellofemoral syndrome; however, the examiner did not provide an opinion as to the etiology of those disorders. The Veteran has contended that they are related to injuries he sustained during his military service. Thus, a medical opinion would be helpful in adjudicating the claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should request medical records from the VAMC in Lyons, New Jersey, dated in the 1990s for the Veteran's psychiatric problems and dated since May 2011. The RO/AMC should also request medical records from the VAMC in Tampa, Florida, documenting the Veteran's alleged inpatient hospitalization for psychiatric problems in 1988. All attempts to secure these records, and any response received, should be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. The RO/AMC should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. The RO/AMC should contact the Veteran and his representative and ask that they submit an April 2011 private narrative report from J.D., Ph.D., that dated the onset of the Veteran's current intermittent explosive disorder to the time of his military service, or provide appropriate authorization for VA to secure this report, so that it can be associated with the claims folder Any response received from the Veteran or his representative should be documented in the claim file. 4. After completing the foregoing development, the RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any current left leg disorder, including any left knee or ankle disorders that may be present. The Veteran should be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran was treated for a left ankle sprain in service and that a cast was placed on the left ankle and left leg in service. Post-service, there has been no diagnosis or treatment for a left ankle disorder, but the Veteran appears to have sustained a left knee injury in 1988. Beginning in 1988, he underwent the first of four post-service left knee surgeries. The examiner should identify all current diagnoses of a left leg disorder, including any left knee and ankle disorders. For each diagnosis identified, the examiner should state whether it is it at least as likely as not (i.e., 50 percent or more probable) that the disorder is related to the Veteran's military service, including his left ankle sprain documented therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completion of the above development, if warranted by the evidence of record, the Veteran should be scheduled for a VA examination with a psychiatrist to obtain a medical opinion concerning the etiology any current acquired psychiatric disorder, to include PTSD, on the basis of in-service incurrence or aggravation during his active service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). 6. The RO/AMC should then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it should be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. Thereafter, the RO/AMC should consider all of the evidence of record and readjudicate the appeal. If the benefit sought is not granted, the RO/AMC should issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). These claims 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). _________________________________________________ JESSICA J. WILLS 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).