Citation Nr: 1322596 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-36 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disability, to include schizoaffective disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for depression as new and material evidence had not been submitted. In his September 2009 notice of disagreement (VA Form 21-4138), the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. An informal hearing conference with a DRO was conducted in November 2009 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claims folder. The Veteran testified before the undersigned at a November 2010 hearing at the RO (Travel Board hearing). A transcript of that hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. 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 Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Evidence associated with the Veteran's claims file, including an October 1998 letter from the Social Security Administration (SSA), reflects that the Veteran is receipt of SSA disability benefits for a psychiatric disability. The United States Court of Appeals for Veterans Claims (Court) has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Although there are some limited SSA disability records in the claims file, the SSA has not been contacted to attempt to obtain all medical records related to its disability determination. As such records appear to be directly relevant to the issue on appeal, a remand is necessary to attempt to obtain all relevant SSA disability records. A May 2000 VA mental health treatment note reveals that the Veteran had been treated for a psychiatric disability at the VA outpatient clinic in Martinez, California (VAOPC Martinez). Also, a July 2000 VA mental health treatment note indicates that the Veteran was seeking additional psychiatric treatment at the VA Medical Center in Phoenix, Arizona (VAMC Phoenix). There are no treatment records from VAOPC Martinez in the claims file and the July 2000 VA mental health treatment note is the most recent relevant treatment record from VAMC Phoenix. There are no additional treatment records included among the Veteran's paperless records in the Virtual VA system. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992).\ Additionally, a September 1993 examination report from Kaiser Permanente, the May 2000 VA mental health treatment note, and the Veteran's testimony during the November 2010 hearing reflect that he received psychiatric treatment at Herrick Hospital, Martinez County Hospital, and the Arizona Mental Health Association. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to the above identified treatment records. As any such records of treatment for a psychiatric disability are directly relevant to the issue on appeal, a remand is also necessary to attempt to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received post-service treatment for a psychiatric disability and to complete authorizations for VA to obtain all records of his treatment for a psychiatric disability from Herrick Hospital, Martinez County Hospital, the Arizona Mental Health Association, and from any other sufficiently identified private treatment provider from whom records have not already been obtained. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim, and he shall be advised to submit any records in his possession. All such notification must be documented in the claims file. 2. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability from VAMC Phoenix dated from July 2000 through the present, from VAOPC Martinez, and from any other sufficiently identified VA facility from which records have not already been obtained. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. If any benefit on appeal remains denied, the agency of original jurisdiction (AOJ) shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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). _________________________________________________ J. A. MARKEY 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).