Citation Nr: 1320868 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-37 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1985 to January 1989 and December 1990 to August 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This issue was previously remanded by the Board in November 2012 for additional development, including obtaining additional VA and private treatment records and providing a VA examination. The Board finds all listed records were requested and a VA examination was provided. As such, the Board finds there has been substantial compliance with the remand directives and appellate review may proceed. Stegall v. West, 11 Vet. App. 268 (1998); D'Arie's v. Peake, 22 Vet. App. 97 (2008). However, as will be discussed below, additional remand is required. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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 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 Veteran is seeking service connection for an acquired psychiatric condition. As discussed above, this issue was previously remanded by the Board in November 2012 for additional development. Specifically, the Board requested three actions. First, the Board requested treatment records from the VA facility in Dallas from August 2009 to February 2011 and the facility in Atlanta/Augusta since October 2012 be associated with the claims file. The Board finds these files were obtained and associated with the claims file and no additional action is required. Second, the Board requested private treatment records from the following facilities be associated with the claims file: Hutchins State Jail from 2011 to 2012, Coastal Harbor Health System for a hospitalization in August 2012, and Emory Hospital and Cobb Stabilization Center for a hospitalization in October 2012. In regards to the records from Hutchins State Jail the Board finds on November 20, 2012 the Veteran signed an Authorization and Consent to Release Information form for medical record for Hutchins State Jail from May 2011 through April 2012 for his depression. The VA faxed a record request and a copy of the medical release form to Hutchins State Jail on May 6, 2013. A Report of General Information from June 12, 2013 reflects the RO called Hutchins State Jail who reported they did not receive the initial request, but would send the requested medical records late the following week. As such, the Hutchins State Jail records have been requested, but have not yet been associated with the claims file. Consequently remand is required so the records from Hutchins State Jail may be associated with the claims file. The Board finds the requested records from Coastal Harbor Health System, Emory Adventist Hospital, and Cobb County were all obtained and associated with the claims file by May 16, 2013. The Board finds these additional files are non-duplicative and pertinent to the Veteran's claim. For example, these records include the Veteran's temporary hospitalization following a suspected attempted suicide. Furthermore, the Board notes the Veteran's claim was not re-certified to the Board until May 31, 2013. As such, the Veteran's file was still before the RO when the additional non-duplicative, pertinent evidence was submitted. VA regulations provide that if additional evidence is received by the agency of original jurisdiction after the statement of the case had been issued then a supplemental statement of the case will be issued addressing the additional evidence. 38 C.F.R. § 19.37(a). However, in this case the most recent Supplemental Statement of the Case, from May 23, 2013, reflects the RO did not consider any of the newly submitted private treatment records. As such, the Board finds the additional new, non-cumulative evidence was submitted to the RO before certification to the Board but was not addressed in a supplemental statement of the case. The Board notes that on May 23, 2013 the Veteran's representative submitted a Wavier indicating the Veteran waived consideration by the Agency of Original Jurisdiction for any later submitted evidence. However, this waiver was submitted after the private treatment records were associated with the claims file on May 16th. As such, these newly submitted pertinent private treatment records are not covered by this waiver. Therefore, remand is required so the RO may consider the new evidence and issue a new statement of the case. Finally, the Board requested the Veteran be provided a VA examination after obtaining the above-referenced medical records. The record reflects the Veteran was provided with a VA examination in March 2013, however the additional private treatment records were not associated with the claims file until May 2013, and the record from Hutchins State Jail have still not been associated with the claims file. As such, remand is required for an addendum to this medical examination. 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. Obtain the Veteran's medical records from Hutchins State Jail for 2011 through 2012 and associate them with the claims file. 2. Return the Veteran's claims file to the same examiner who provided the March 2013 examination, if available. The examiner should review the newly submitted evidence, including the private treatment records from Hutchins State Jail, Coastal Harbor Health System, Emory Adventist Hospital, and Cobb County. [If the examiner does not have access to Virtual VA, then these records will need to be printed for review.] The examiner should then provide an addendum opinion addressing if review of these additional records changes any of the opinions expressed in the March 2013 examination report. If the same examiner is not available, the RO/AMC should schedule the Veteran for an additional VA psychiatric examination to determine the nature and etiology of an acquired psychiatric condition after obtaining the private medical records from Hutchins State Jail. The claims folder must be made available to the examiner for review in conjunction with the examination. Any required tests and studies must be accomplished, and clinical findings must be reported in detail and correlate to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided. Consistent with the factual history of the Veteran's psychiatric condition, the examiner should provide an opinion as to the following questions: a) What is the nature and severity of the Veteran's current acquired psychiatric condition, to include depression, if any? b) Is it as likely as not (50 percent or greater) that the Veteran's current acquired psychiatric condition is related to his military service? 3. Then, readjudicate the appeal, considering all the evidence, including the private medical records in the Veteran's Virtual VA file. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHELLE L. KANE 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).