Citation Nr: 1323522 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-12 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including polysubstance dependence and a mood disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claim. The RO in Louisville, Kentucky, currently has jurisdiction. In May 2012, the RO granted entitlement to a nonservice-connected pension. This award of benefits satisfies the Veteran's appeal on that issue. The Veteran withdrew his March 2010 request for a hearing before a Veterans Law Judge in a June 2013 written statement. See 38 C.F.R. § 20.704(e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he currently suffers from an acquired psychiatric disorder as a result of his in-service duties as a military policeman, including undercover work as an infiltrator for military police investigations. See April 2009 Notice of Disagreement (NOD), March 2010 formal appeal. In September 2012, the Veteran reported significant in-service treatment for substance abuse and mental health problems. His service treatment records include an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) military client intake and follow-up record dated April 1976. As no other records of the Veteran's participation in this program are present in the claims folder or electronic records file, additional development should be undertaken to locate and obtain any additional ADAPCP or other mental health or substance abuse records from his period of active military service. See VA Adjudication Procedures Manual, M21-1MR, pt. III, sbpt. iii, ch. 2, § A.1.a (Jan. 7, 2007). The AMC should also attempt to locate any available military police investigation reports identified by the Veteran as evidence material to proving his undercover assignments during active service with the military police. See 38 U.S.C.A. § 5103A(b), (c)(1); 38 C.F.R. § 3.159(c)(2), (3); see also April 2009 NOD, March 2010 formal appeal. Service personnel records show that the Veteran served as a military policeman with the 516th Military Police Company at the Savanna Army Depot in Savanna, Illinois, from December 1974 to December 1975, and with the 511th Military Police Company at Fort Dix, New Jersey, from December 1975 to December 1976, excepting a one day period of absence without leave (AWOL). Lastly, any outstanding recent VA treatment records should also be obtained on remand and associated with the claims folder or electronic records file, and the Veteran should be given another opportunity to submit authorization and consent to release his relevant private treatment records from Marion Correction Facility, Morant Bay Hospital, and Lynn Hospital. 38 U.S.C.A. § 5103A(b)(3), (c)(2); 38 C.F.R. § 3.159(c)(2), (3). The Veteran is advised that the duty to assist is a two-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, if the Veteran wishes these private treatment records to be considered in support of his claim, he must assist in obtaining the records by either submitting the completed release forms for VA to request them or by submitting them himself. Then, after all available relevant records have been obtained, the AMC should obtain a supplemental medical opinion to allow the examiner the opportunity to correct the erroneous finding that the Veteran's service records did not show any treatment for substance abuse and to review and consider the April 1976 ADAPCP record and any additional records obtained on remand. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The examiner should provide an additional medical opinion on the Veteran's current psychiatric diagnoses and the etiology of his diagnosed psychiatric disorders that accounts for his complete relevant history of mental health and substance abuse treatment. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding recent VA treatment records. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Ask the Veteran to submit any additional relevant treatment records that he has in his possession, or to identify (i.e., provide the names, addresses, and approximate dates of treatment) his private and other non-federal mental health care providers and to furnish signed authorizations for release of any records identified, including any mental health treatment records from Marion Correction Facility, Morant Bay Hospital, and Lynn Hospital. Make arrangements to obtain all records that are adequately identified and for which signed authorizations have been obtained. 3. Make all appropriate attempts to obtain any additional relevant service records, including (a) any additional ADAPCP or other mental health or substance abuse treatment records and (b) any existing investigation reports from the 516th Military Police Company at the Savanna Army Depot in Savanna, Illinois, from December 1974 to December 1975, and from the 511th Military Police Company at Fort Dix, New Jersey, from December 1975 to December 1976. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative if the records are non-existent or unavailable. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim, and notice that the Veteran is ultimately responsible for providing the evidence VA was unable to obtain. 4. Then, request an addendum to the September 2012 VA examination report from the same examiner, if possible. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the following requested information: (a) Identify all psychiatric diagnoses found to be warranted under the criteria set forth in the DSM-IV and explain the reason for any change to the diagnoses provided. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder had its onset during service or is related to the Veteran's period of active service. (c) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed substance disorder is attributable to a service-related psychiatric disorder. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must identify the facts relied on in reaching any opinion provided and provide a full explanation as to why those particular facts support the examiner's conclusions. 5. Review the medical opinion obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 6. Finally, readjudicate the claim on appeal. 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 appellant 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). _________________________________________________ K. Parakkal 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).