Citation Nr: 1325337 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 02-11 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1968 to December 1970. The case initially came before the Board on appeal from a March 2002 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied the Veteran's application to reopen a claim of service connection for a psychiatric disorder. In an October 2003 decision, the Board denied the Veteran's claim to reopen. He appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2006 Order, the Court vacated the Board's October 2003 decision and remanded the matter to the Board for readjudication consistent with the instructions outlined in the Court's decision. In September 2008, the Board remanded the case to the RO in order to satisfy notice requirements in accordance with the Court's decision. In a May 2010 decision, the Board determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder; then, in consideration of the claim on the merits, the Board remanded the case to the RO for additional development. In December 2010, the Board again remanded the case to the RO to ensure that the RO complied with the Board's May 2010 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2012 decision, the Board dismissed the Veteran's appeal seeking service connection for a psychiatric disorder, on the basis that the Veteran was deemed to have abandoned his claim by failing to submit requested identifying information and releases for critical evidence needed to properly adjudicate his claim. The Veteran appealed the Board's decision to the Court, which in a March 2013 Order granted a Joint Motion for Remand, filed by the parties (the Veteran and the VA Secretary) in February 2013. In that Joint Motion, the parties moved the Court to vacate the Board's decision and remand the case to the Board so that it would reconsider the Veteran's claim and render a decision on the merits of the claim. As previously noted by the Board in its now-vacated August 2012 decision, the matter for appellate consideration is limited to service connection for a psychiatric disorder other than PTSD. The issue of service connection for PTSD is a separate matter, which historically was the subject of a prior final rating decision in December 1993. The Veteran had initiated an appeal of that rating decision, but he subsequently withdrew his appeal seeking service connection for PTSD during a hearing held before a Decision Review Officer at the RO. More recently, the Veteran in July 2010 applied to reopen his claim of service connection for PTSD, but his application was denied by the RO in an October 2011 rating decision, for which the Veteran did not initiate an appeal. Thus, PTSD is not for consideration. The appeal is REMANDED to the RO. REMAND As was previously noted, an August 2012 Board decision dismissed the Veteran's appeal seeking service connection for a psychiatric disorder other than PTSD. The decision was not made on the merits of the claim because the Board deemed the Veteran to have abandoned his claim by not responding to a December 2010 request to provide identifying information and the releases needed to secure pertinent outstanding evidence necessary to adjudicate the claim. In particular, the information sought by the RO in December 2010 pertained to records of treatment or evaluation the Veteran received in connection with and following his suicide attempts in the 1970s, in 1982, and in 1983/1984. In its Remands of May 2010 and December 2010, the Board directed the RO to seek such specific information from the Veteran. To date, he has not responded. The Board observes that the Veteran has undergone a VA psychiatric examination in September 2010 and has also submitted a private report prepared by Christina Riebeling, Ph.D., dated in April 2013, both of which contain medical opinions favorable to the Veteran's service connection claim. However, such opinions were offered without the benefit of review of the Veteran's entire psychiatric history, because the records relative to evaluation and treatment of the reported suicide attempts have not been obtained and associated with the claims file. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Whether an examiner has been informed of relevant facts upon which to base an opinion is a critical element in determining the probative weight in which to assign that opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion). Thus, in this case the Veteran's cooperation is paramount in obtaining his psychiatric treatment records, particularly those associated with treatment for suicide attempts, which constitute pertinent outstanding evidence that may or may not have a significant bearing on the conclusions reached by the VA examiner in 2010 and Dr. Riebeling in 2013. In any case, the probative value of those medical opinions is dependent upon consideration of a factually accurate and complete medical background. The Joint Motion of February 2013, which was endorsed by the Court, asserts that the Veteran's appeal should not have been dismissed on the basis of abandonment of the claim, because the Veteran had participated in the prosecution of his appeal during the entire appeal period. As an example of his continuous involvement or action on his claim following his failure to respond to the December 2010 request for additional pertinent information, it was noted among other things that he had attended an April 2012 VA psychiatric examination [although such examination was for the sole purpose of determining the Veteran's competency and ability to manage his financial affairs] and his representative had submitted several documents arguing in support of his appeal. The Joint Motion cited to Evans v. West, 12 Vet. App. 396 (1999), in support of its position that, as a matter of law, a claimant has not abandoned his claim under 38 C.F.R. § 3.158(a) for failure to submit requested evidence within a year of an RO request when that claim was pending in appellate status. Having considered the actions called for in the Joint Motion, the Board is not prepared at this juncture to issue a decision based on the merits of the claim. Rather, it is taking this opportunity to emphasize to the Veteran the critical importance of seeking the treatment or evaluation reports in connection with his suicide attempts in the 1970s and 1980s, and requesting his cooperation in obtaining such records. As the record now stands, the earliest psychiatric records are dated from about 1993, nearly 23 years following discharge from service, but documentation of psychiatric problems and treatment from the 1970s would demonstrate a continuity of psychiatric symptomatology from the time of service that would support establishing service connection. Although VA and private medical opinions favorable to the claim are contained in the file, they notably are based on an incomplete factual background of the Veteran (other than the Veteran's own unsubstantiated reported history). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to provide information identifying the provider(s) of any additional treatment or evaluation he has received for a psychiatric disorder (i.e., records of which are not already associated with the claims file), as well as the necessary releases for VA to secure such records, to specifically include records of treatment or evaluation he received in association with/following his suicide attempts in the 1970s, in 1982, and in 1983/84. If these records are not received, the Veteran should be advised that ultimately it is his responsibility that these records are received. 2. After completion of the foregoing development, if additional pertinent evaluation and treatment records are received, arrange for the Veteran to be scheduled for a VA psychiatric examination to secure an addendum opinion to the September 2010 VA examination report regarding the nature and likely etiology of his current psychiatric disability (in light of the complete and accurate historical record). The entire record must be reviewed by the examiner in conjunction with the examination. The examiner is asked to reconcile any medical opinions he/she provides concerning the Veteran's current diagnosis and onset of any psychiatric disorders that differ from those offered by the VA examiner in September 2010 and Dr. Riebeling in April 2013. A complete rationale for all opinions expressed should be provided. 3. After completion of the foregoing development, adjudicate the claim of service connection for a psychiatric disorder other than PTSD. If the benefit sought remains denied, furnish the Veteran a supplemental statement of the case; afford him the opportunity to respond; and then return the case 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 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).