Citation Nr: 1325506 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-29 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include paranoid schizophrenia. 2. Entitlement to service connection for a seizure disability. 3. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from November to December 1985. These matters initially came before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for schizophrenia, a seizure disorder, and an upper spine disability. The Veteran testified before the undersigned at a May 2011 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with his claims folder. In January 2012 and January 2013, the Board remanded these matters for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on 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 In its January 2013 remand, the Board instructed the agency of original jurisdiction (AOJ) to contact the Veteran and ask him to identify any additional relevant private treatment records that were not already in the claims file, including from the following facilities: the University of Massachusetts Medical Center, "Winmore (Windmoor) Psychiatric Center," North Hampton State Hospital, Horizon Hospital, Suncoast Medical Center/Community Mental Health Center, Harbor Behavioral Health Care Institute, "Dr. Herton," and Gulf Coast Medical Center dated since December 2010. He has also reported treatment at Florida State Hospital. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). In a January 2013 letter, the AOJ asked the Veteran to send any additional relevant treatment records, including from the treatment providers listed above. However, although copies of the appropriate release form (VA Form 21-4142) were included with the letter, the AOJ did not specifically inform the Veteran of the need to complete the releases in order for VA to obtain the records. Thus, a remand is necessary to again attempt to obtain any additional relevant private treatment records. Moreover, if any additional relevant treatment records are obtained, the claims file should be referred to the examiner who conducted a March 2013 VA psychiatric examination in order to allow him to review the additional records. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to complete authorizations for VA to obtain all records of his treatment for a psychiatric disability, a seizure disability, and a back disability from the following treatment providers: Gulf Coast Medical Center dated since December 2010, the University of Massachusetts Medical Center, "Winmore (Windmoor) Psychiatric Center," North Hampton State Hospital, Horizon Hospital, Suncoast Medical Center/Community Mental Health Center, Harbor Behavioral Health Care Institute, "Dr. Herton," and Florida State Hospital. All efforts to obtain these records must be documented in the claims file. 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 claims. All such notification must be documented in the claims file. 2. If, and only if, any additional relevant treatment records are obtained and associated with the claims file, ask the examiner who conducted the March 2013 VA psychiatric examination to review the claims file, including this remand any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, and provide an opinion as to the etiology of the Veteran's current psychiatric disability. For each current psychiatric disability identified (i.e. any psychiatric disability diagnosed since March 2008), the opinion provider shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current psychiatric disability had its onset in service, had its onset in the year immediately following service, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the opinion provider must specifically acknowledge and comment on all psychiatric disabilities diagnosed since March 2008 as well as the March 2013 opinion concerning the etiology of the Veteran's current psychiatric disability. The opinion provider must provide reasons for each opinion given. The opinion provider is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the opinion provider rejects the Veteran's reports regarding symptoms, he or she must provide a reason for doing so. The absence of evidence of treatment for psychiatric problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the opinion provider determines that he or she cannot provide an opinion without resorting to speculation, the opinion provider shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the opinion provider be undertaken so that a definite opinion can be obtained.) If the March 2013 examiner is unavailable or otherwise unable to provide the requested opinion, the Veteran shall be afforded a new VA psychiatric examination to obtain the necessary opinion. 3. The AOJ shall review any opinion/examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. If any benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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).