Citation Nr: 1325043 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 11-11 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for acquired psychiatric disability. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1985 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in January 2011, a statement of the case was issued in March 2011, and a substantive appeal was received in April 2011. Although the Veteran has advanced his claim with reference to depression and anxiety, preliminary review of the record reveals diagnoses of various psychiatric disorders at different times. The Board has therefore broadly described the issue in terms of acquired psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding that VA should consider claims for specific mental disorders to include all mental disabilities reasonably indicated by the record). 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 VA examination in October 2010 resulted in a diagnosis of Asperger's disorder. The examiner appears to have opined that this disorder was not related to service, but was probably exacerbated by service. The record reveals some question as to whether Asperger's disorder is a developmental defect or disease. Congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. According to the VA General Counsel's opinion, however, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. In addition, the October 2010 examiner found no diagnosis of major depression or anxiety in October 2010, but provided no additional reasons or bases for her conclusion beyond noting that the Veteran most likely previously met the criteria for depression and anxiety. The examiner also made no mention of the diagnosis of schizophrenia. The Board also notes that the October 2010 examination report indicates that the examiner did not review the Veteran's private medical records from Prairie View. As these records contain positive diagnoses of multiple psychiatric disorders, the Board finds these material to adjudicating the Veteran's claim. Accordingly, the Board finds this examination and opinion inadequate, and that remand is necessary to obtain an adequate VA examination and opinion before a determination on the merits may be made. A. Private Treatment Records In a January 2005 appointment at the Wichita, Kansas VA Medical Center (VAMC), the Veteran indicated he was then following with a private psychiatrist, Dr. C.M. However, no such private records have been associated with the claims file. Though the Veteran is ultimately responsible for obtaining non-Federal evidence that may be used to support his appeal, as additional development is already required, the Board finds that additional efforts to obtain his identified missing private records should be made on remand. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (explaining that the VCAA duty to assist is not a one-way street). B. VA Treatment Records Finally, pertinent VA medical records appear to be outstanding. The record reflects that, as of August 20, 2010, the Veteran was receiving ongoing treatment for depression and related mental health problems at the Wichita VAMC. However, no VA medical records dated since that time have yet been associated with his paper claims file or Virtual VA e-folder. Accordingly, as it appears that the Veteran may have received subsequent VA mental health treatment that is pertinent to his claim, the relevant records should be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that where VA medical treatment records are material to the issue on appeal and not associated with the claims file, a remand is necessary to acquire them because VA has constructive knowledge of their existence). Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain copies of any (and all) pertinent outstanding VA treatment records of the Veteran related to a psychiatric disability from the Wichita VAMC dated since August 20, 2010. If such records cannot be obtained after reasonable efforts have been exhausted, the RO should issue a formal determination that they do not exist or that further efforts to obtain them would be futile and document that finding in the claims file. 2. After obtaining the necessary authorization from the Veteran, request copies of relevant private treatment records from Dr. C.M. Two attempts should be made to obtain these treatment records, unless a formal finding can be made that a second request would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 3. If any records requested above are unavailable, clearly document and notify the Veteran of any inability to obtain these records pursuant to 38 C.F.R. § 3.159(e). He should also be notified to submit any pertinent VA or private records in his own possession. 4. After completion of the above to the extent possible, the Veteran should be scheduled for VA examination by a psychiatrist to determine the nature, extent and etiology of any current psychiatric disabilities. The entire claims file, particularly the Veteran's private medical records from Dr. C.M. and Prairie View, must be made available to the examiner for review in connection with the examination. Examination findings should be clearly reported, and the examiner is asked to respond to the following: a) Diagnose all current psychiatric disorders in accordance with the DSM-IV. Expressly indicate if the diagnostic criteria for depression, anxiety, or schizophrenia are not met and reconcile all such findings with the treatment records diagnosing these disorders. b) Clarify whether Asperger's is a developmental disorder and, if so, indicate whether this disorder was aggravated or permanently worsened by any aspect of the Veteran's active service. c) State whether it is at least as likely as not (a 50% or greater probability) that any current psychiatric disability (other than Asperger's), to include depression, anxiety, or schizophrenia, was manifested during a period of the Veteran's service, within a year of service as to any psychosis, or is otherwise causally related to such service? 5. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ ALAN S. PEEVY 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).