Citation Nr: 1328047 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 07-16 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, depression, nightmares, and trouble sleeping. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to October 1971. This matter most recently came to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2012, the Veteran provided testimony before the undersigned Veterans Law Judge at a hearing conducted at the RO; a transcript of this hearing is of record. The Board remanded this claim in May 2012 so that certain development of the evidence could be conducted. 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 As indicated in the Introduction, this case was remanded in May 2012. Unfortunately, the ordered development remains to be sufficiently completed. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board's May 2012 remand therefore directed, inter alia, that "[a]ppropriate efforts must also be made to obtain all available VA treatment records since April 2003 and Vet Center records since January 2004." This ordered development followed the Board's observation that a review of VA medical records reflected a gap of time in records from April 2003 to September 2011, and a gap of time in Vet Center records dated from January 2004 to February 2007. Review of the post-remand evidentiary record shows that while VA outpatient medical records, dated from April 2003 to December 2012, were associated with the record, no records from the Vet Center were obtained. To this, the Board notes that 38 C.F.R. § 3.159(c)(2) directs that "VA will end its efforts to obtain records from a federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile." Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Also, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall, at 271. In Stegall, the United States Court of Appeals for Veterans Claims (Court) held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance." Id. Here, the Board notes that efforts to obtain these sought after records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). The Vet Center is a part of the VA which provides counseling to assist Veteran's in readjusting to civilian life. 38 U.S.C.A. § 1712A (2012). The counseling provided may include a general mental and psychological assessment of the Veteran to determine whether the Veteran is having difficulties readjusting to civilian life. Id. Again, the Board notes that review of the claims file shows that an effort to obtain these Vet Center records has not been undertaken. These records are VA records and should therefore have been obtained. See 38 C.F.R. § 159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). Thus, because possible outstanding VA Vet Center records have been identified pertinent to the Veteran's claim on appeal, and as the Board finds under the facts of this case that these records may provide probative evidence which may be helpful in the Board's adjudication of this matter, VA must undertake sufficient efforts to acquire such documents as these records may be relevant to his claim; an additional effort should therefore be made to obtain such records. Thus, on remand, an attempt to obtain medical records, dated from January 2004, from the VA Vet Center need be undertaken. The Board's May 2012 remand also instructed the physician who examined the Veteran in February 2011 to provide an additional medical opinion, in order to "reconcile" other opinions already of record. In so doing, the examiner was asked to "review the Veteran's entire claims folder including any additional treatment records." (emphasis added). The remand also noted, concerning any additionally-obtained medical records, that if any of these records are deemed relevant to the issue on appeal "action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical examiner who is asked to review the claims file and provide medical opinions in conjunction with the development requested herein. 38 C.F.R. § 159(c)(1) and (2)." Of record are those included within Virtual VA. These VA outpatient treatment records, obtained following the Board's May 2012 remand, are dated from April 2003 to December 2012. The physician who provided the July 2012 addendum opinion is not shown to have had an opportunity to review these records. Stegall. This is particularly important because, as while the physician in July 2012 continued to find that the Veteran did not have PTSD, these newly associated records include several (dated in July 2011; and April, June, and November 2012) which include diagnoses of PTSD. Applicable regulations state that it is essential that, both in the examination and evaluation, each disability be viewed in relation to its history. See 38 C.F.R. § 4.1. In this regard, medical examinations generally should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); see also 38 C.F.R. § 3.326 (2012); VAOPGCPREC 20-95 (July 14, 1995) (a VA examiner must review a claimant's prior medical records when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should again seek to obtain any records from the Vet Center dated beginning in January 2004. The RO/AMC should request a consent to release information from the Veteran only if the Vet Center indicates that one is necessary. All efforts to obtain these records should be documented in the claims file and requests for such records must continue until the RO/AMC determines that the records sought do not exist or that further efforts to obtain those records would be futile. 2. The RO/AMC should thereafter forward the claim folder to the VA fee-basis physician who completed the February 2011 VA fee-basis examination (and July 2012 addendum). If the physician finds that a contemporaneous examination would be beneficial, such should be scheduled. If the physician is not available, the claims file should be made available to and reviewed by a different examiner. Again, if this examiner finds that a contemporaneous examination would be beneficial, one should be scheduled. After reviewing the claim folder, to include this remand, and all medical records included within Virtual VA, by means of an addendum report, the examiner must address the following: The examiner should specifically reconcile the opinion provided in February 2011 with all other opinions of record, including the July 2004 and February 2011 VA opinions. The rationale for all opinions must be provided. Specifically, the examiner should provide the following: (a) Diagnose any current acquired psychiatric disorder, to specifically include PTSD, anxiety, and depression and any disorder manifested by nightmares and trouble sleeping. (b) Is it at least as likely as not that the Veteran has any acquired psychiatric disorder (other than his already service-connected schizophrenia) that was incurred in or aggravated by his service, including the claimed account of military sexual trauma? The examiner must consider the Veteran's statements and March 2012 testimony regarding the incurrence of an acquired psychiatric disorder, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions is necessary -- to include providing citations to pertinent factual findings and in-service medical history -- and a discussion of the medical principles involved would be of considerable assistance to the Board. In addition, the reviewer/examiner must explain the basis for any and all provided opinions. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled VA examination --if necessary -- and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). In the event that the Veteran does not report for the examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action must be taken. See Stegall, at 271. 5. If, while in remand status, additional evidence or information received triggers a need for further development or assistance, such as providing the Veteran with updated notice of what evidence has been received and not received by VA as well as who has the duty to request evidence, then such development must be undertaken by VA. 38 U.S.C.A. §§ 5100, 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 6. Thereafter, and following any other indicated development, the RO/AMC should readjudicate the appealed service connection issue in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran should be provided a Supplemental Statement of the Case that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. He should then be afforded an applicable time to respond thereto. 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 or by the Court 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). _________________________________________________ MICHAEL MARTIN 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).