Citation Nr: 1327263 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-18 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the Veteran's residual scars of his nose. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney-at-Law ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. He thereafter served with the Puerto Rico National Guard. This matter comes to the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In December 2011, the Board reopened the Veteran's claim for entitlement to service connection for schizoaffective disorder, to include as secondary to the Veteran's residual scars of his nose, and denied the underlying claim for service connection. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated October 26, 2012, granted the motion and remanded the case to the Board. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in June 2007 to address whether his psychiatric condition was caused by or a result of an in-service accident with explosives that occurred in September 1984 during the Veteran's National Guard service, as he particularly contends. The examination resulted in an assessment of schizoaffective disorder and the examiner rendered a negative etiological opinion. She based her opinion on the sole fact that there was no evidence of psychiatric complaints, psychiatric findings or psychiatric treatment during the Veteran's military service. As the examiner offered this sole rationale, the parties sought remand of the Board's decision. See JMR. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the service treatment records to provide a negative opinion). The claim is remanded to afford the Veteran a new VA examination. As the parties have noted, the June 2007 VA examination is inadequate as the examiner, in rendering a negative etiological opinion, relied solely upon the absence of service treatment records noting complaints, treatment or diagnosis of a psychiatric disorder. Dalton, supra. As the examination is inadequate, it must be returned. 38 C.F.R. § 4.2. Also, as the Veteran's attorney points out in July 2013 written argument, the evidence of record does suggest that the Veteran may have had a schizoaffective disorder that pre-existed his period of active duty service in the National Guard during which the explosion incident occurred in September 1984. Thus, further examination is necessary to address whether there was any pre-existing psychiatric disorder that was aggravated in service. Id. The Board also notes that some of the Veteran's National Guard records have been associated with the claims file, particularly those related to the explosion incident. However, it does not appear that a formal request has been made for these records. It thus appears to the Board that there may be outstanding relevant service treatment and personnel records, possibly in the possession of the Veteran's respective former National Guard unit. When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2). Accordingly, VA must attempt to obtain any possibly outstanding service treatment and personnel records. It is also noted that the Veteran is in receipt of Social Security Administration disability benefits. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Finally, as the Veteran receives mental health care through VA, VA treatment records that have not been associated with the claims folder should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any records not currently associated with the claims file, including any personnel and treatment records associated with the Veteran's National Guard duty and associate them with the claims file. Perform any and all follow-up as necessary, and document negative results 2. Request, directly from the SSA, complete copies of any adjudication and any re-adjudications concerning disability benefits from that agency as well as the records, including medical records, considered in adjudicating or re-adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Obtain VA treatment records, including hospitalization records, that are not already of record and are relevant to assessment and treatment of psychiatric disorders. 4. After the above development has been completed to the extent possible, schedule the Veteran for a VA examination to address the nature and etiology of his claimed psychiatric disorder. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. The examiner must address the following questions, keeping in mind that the Veteran is competent to discuss his symptoms in service and thereafter, despite any lack of documentation of the same: a) The examiner should state what probability exists, if any, that a psychiatric disability, to include schizoaffective disorder, pre-existed service, particularly the period of service involving the September 1984 explosion incident. b) If the examiner finds that the probability is 50 percent or greater that a psychiatric disability pre-existed pre-existed service, particularly the period of service involving the September 1984 explosion incident, state what probability exists that the Veteran's period of service involving the September 1984 explosion caused his condition to become aggravated, i.e., (permanently worsened), as opposed to any increase in severity that was due to the natural progress of the disease. c) If a response above was negative, is it at least as likely as not (50 percent probability or greater) that a current psychiatric disorder, including schizoaffective disorder and depression, was incurred during service or is otherwise etiologically related to service, to include the in-service accident with explosives that occurred in September 1984 during the Veteran's National Guard service? d) If the examiner finds that it is less likely than not that the Veteran has a current psychiatric disorder, including schizoaffective disorder and depression, that is etiologically related to service, is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected residual scars of his nose caused any currently diagnosed psychiatric disorder. Attention is directed to the in-service accident with explosives that occurred in September 1984 during the Veteran's National Guard service. e) The examiner should opine whether it is at least as likely as not that a current psychiatric disorder, including schizoaffective disorder and depression, has been aggravated (that is, worsened) beyond its natural progression by the service-connected residual scars of his nose. Attention is directed to the in-service accident with explosives that occurred in September 1984 during the Veteran's National Guard service. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. In rendering the requested opinion, the examiner should consider the competent lay evidence regarding psychiatric symptoms experienced by the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that examination found inadequate where examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete explanation for any opinion expressed must be provided. 5. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ S. S. TOTH 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).