Citation Nr: 1320567 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-50 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disability, to include schizophrenia and depression. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1983. This case is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. Jurisdiction over the claims folders was subsequently transferred to the RO in San Juan, the Commonwealth of Puerto Rico. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. The record reflects that the RO has characterized the Veteran's psychiatric disability claim as a claim for service connection for schizophrenia. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. The Board has accordingly recharacterized the Veteran's psychiatric disability claim, per Clemons, as noted on the title page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran maintains that he currently has a psychiatric disability that was incurred during his military service. Specifically, he maintains that he began having auditory and visual hallucinations during service. He reported that he told his mother about these hallucinations on the phone. See June 2010 hearing transcript. A statement submitted by his mother in August 2010 supports his contentions. The Veteran's service treatment records note no complaint or finding of a psychiatric disability. He declined a separation examination. Post-service VA treatment records note that the Veteran has been seen since 2008 with complaints of depression and since 2009 with complaints of hallucinations. A June 2011 Supplemental Statement of the Case notes that in February 2011, the West Haven VA Medical Center (VAMC) advised that it was "unable to contact" the Veteran and therefore "could not schedule [him] for a VA Psychiatric examination." However, the details of how contact with the Veteran was attempted was not explained, nor is there evidence in the file demonstrating how this was done (i.e., what type of notice [letter, email, phone], to what address or phone number, how many attempts made, etc.). Therefore, it is unclear from the record if reasonable efforts were made in this regard, especially in light of the fact that the record shows that the Veteran had received treatment for his asthma at the West Haven VAMC on several occasions from April 2010 to August 2011. (The Board points out the Veteran was living in Connecticut at this time; according to the evidence of record he provided a new address in Puerto Rico in October 2012.) Once VA undertakes development of this type - such as scheduling a medical examination - it is obligated to make reasonable efforts to attempt to complete the development sought. In further regard to medical examinations, the Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.). In addition, credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation is enough to satisfy the "low threshold" requirement that a disability "may be associated" with service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Under the "low threshold" standard of McLendon, and in order to ensure that the Veteran is properly assisted in the development of his claim, an examination to determine if there is a nexus between a current or recent psychiatric disability and the Veteran's service is necessary. Prior to the examination, all available outstanding treatment records should be obtained. In this regard, it is unclear from the record whether the May 2008 primary care follow up treatment record from the VA outpatient clinic in Ponce, Puerto Rico, (which notes the Veteran's complaints of depression) is the first time the Veteran reported psychiatric symptoms. On remand, the RO or the AMC should undertake appropriate development to obtain a copy of any pertinent medical records not already of record. 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). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain a copy of any medical records, not already of record, including relevant treatment records from the Ponce VA outpatient clinic and the West Haven VAMC. 2. If the RO or AMC is unable to obtain any pertinent evidence identified by the Veteran or his representative, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 3. Thereafter, the Veteran must be afforded a VA examination by a physician with the appropriate expertise to determine the etiology of any current or recent psychiatric disability, to include schizophrenia and depression. The Veteran should be properly notified of the examination and of the consequences of his failure to appear. If the Veteran fails to appear for the examination, the letter informing him of the examination and the consequences of his failure to appear must be associated with the claims file. His claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles, the examiner should provide an opinion with respect to each psychiatric disability diagnosed, if any, as to whether it is at least as likely as not (a 50 percent or better probability) than any such psychiatric disability(s) is related to his active duty service. A rationale for all requested opinions shall be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he /she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). In so doing, the examiner must acknowledge and discuss the lay statements from the Veteran and his mother, contained in the record, that the Veteran had hallucinations in service. 4. The RO or the AMC should then re-adjudicate the claim. If the benefit sought on appeal remains denied, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See 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 or by the Court 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). _________________________________________________ JONATHAN B. KRAMER 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).