Citation Nr: 1322073 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 03-19 681 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for a psychiatric disability, to include major depression. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from February 1969 to August 1972. This appeal to the Board of Veterans' Appeals (Board) initially arose from a July 2002 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for major depression. In July 2007 and July 2011, the Board, inter alia, remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional development. After accomplishing further action, the AMC continued to deny the claim, and returned this matter to the Board for further appellate consideration. In April 2012, the Board, inter alia, again remanded the claim on appeal to the RO, via the AMC, for additional development. After accomplishing the requested action, the RO continued to deny the claim for service connection (as reflected in an October 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. A review of the Virtual VA claims processing system does not reveal any documents pertinent to the claim on appeal. For reasons expressed below, the claim on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action on the claim for service connection for a psychiatric disability is warranted, even though such will, regrettably, further delay an appellate decision on this matter. As indicated in the Board's April 2012 remand, the Veteran is currently incarcerated, and has been unable to be examined in accordance with the VA Adjudication Procedure Manual's provision regarding incarcerated veterans. The record reflects detailed determinations made by the Veteran's prison warden-specifically, that the Veteran could not be transported to a VA facility for an examination, that a VA examiner could not be sent to the prison facility, and that a prison medical provider could not conduct the VA examination. The Board notes that pursuant to its July 2011 remand directives, the Veteran's claims file was reviewed by a VA psychologist in December 2011 for an etiological opinion. The psychologist noted that 10 years had elapsed since the Veteran had last received VA treatment, that it was not possible to accurately access the Veteran without an examination, and that there were no contemporary medical records available. The Board also notes that pursuant to the Board's April 2012 remand directives, the AMC requested that the Veteran complete appropriate authorization forms to allow VA to obtain his treatment records from the correctional facility where he was currently incarcerated as well as from the facility where he had been previously incarcerated. The Veteran returned such forms in May 2012 and the AMC requested the records from the identified facilities. An August 2012 Report of Contact indicates that the AMC had contacted the correctional facilities and was informed that the Veteran's medical records had been transferred with him. Records dated between March 2011 and August 2012 were received by VA in September 2012. However, the Veteran indicated that he had been incarcerated since 1998 and that there were relevant treatment records dated beginning in October 2001. In addition, it does not appear that any records from the Veteran's former correctional facility were included in the submission to VA. As these private treatment records appear to be incomplete, on remand, the correctional facility should be contacted, and complete records obtained. Also in April 2012 the Board instructed the AMC to determine, following the receipt of treatment records from the Veteran's correctional facilities, whether he had received additional treatment for a psychiatric disability. If so, the AMC was to return the claims file to the December 2011 VA examiner for an addendum opinion. A review of such treatment records currently available in the claims file indicates that the Veteran had been prescribed Ativan in April 2012, suggesting at least some treatment of a psychiatric disability or psychiatric symptoms. As such, and in vew of additional evidence that may be associated with the claims file pursuant to this remand, an addendum opinion should be obtained. If the December 2011 examiner is not available, or is unable to provide the requested opinion, the claims file should be forwarded to an appropriate professional for the opinion sought. While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete. The RO/AMC should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claim on appeal. The Board notes that the Veteran has previously indicated that VA had all of his relevant treatment records with the exception of the correctional facility records addressed herein. The RO/AMC's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103 (West 2002), 5103A; 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO/AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO/AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. This includes records from the St. Mary's Correctional Centers, to include the Mt. Olive Correctional Complex, dated since August 2012 as well as prior to March 2011. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. Obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Following the receipt of any additional records, the entire claims file, to include a complete copy of this REMAND, should be forwarded to the psychologist who reviewed the Veteran's claims file in December 2011 for an addendum opinion. The psychologist should identify all post-service psychiatric disability(ies) reflected in the record/ Then, with respect to each such disability, the psychologist should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. that there is a 50 percent or greater probability) that any such disability had its onset in or is otherwise medically related to service. If psychosis is diagnosed, the physician should indicate whether it is at least as likely as not that such disability was manifested to a compensable degree within one year of service discharge in August 1973. In rendering the requested opinion, the examiner is specifically asked to consider and address the August 1972 report from Fort Sam Houston, along with all other pertinent medical evidence as well as the Veteran's lay assertions. If the prior examiner is not available, or, as indicated previously, is unable to provide the requested opinions without examining the Veteran, forward the claims file to an appropriate mental health professional(a psychiatrist or psychologist), to obtain opinion responsive to the questions posed above. The entire claims file, to include complete copy of the REMAND, must be made available to the individual designated to provide the opinion, and the report should include discussion of the Veteran's documented medical history and assertions. The complete rationale for the conclusions reached should be set forth in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall, supra. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).