Citation Nr: 1332398 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 93-06 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for alcoholism to include as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May 1980 to September 1980 and on active duty from August 1984 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board denied service connection for an acquired psychiatric disorder and alcoholism in November 1994, November 1997, and March 2006. The Veteran appealed the decisions to the United States Court of Appeals for Veterans Claims (Court). In April 1996, November 1998, and November 2007, the Court vacated the decisions and remanded the appeal for compliance with instructions in a Joint Motion for Remand or a Memorandum Decision. The Board remanded the case for further development in November 1996, June 1999, June 2005, July 2008, January 2010, and May 2012. 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 In May 2012, the Board remanded the Veteran's case to request that the Veteran provide the name and address of his private psychiatrist in Danville, Kentucky and the providers of the "Enhanced Range Program" with authorization to obtain records; request all records of VA mental health treatment including from Hazard clinic, and to obtain a VA medical opinion. All VA treatment records from the Hazard community based outpatient clinic and Morehead community based outpatient clinic were obtained and associated with the claims file. The most recent Hazard clinic records were dated in May 2012. The most recent Morehead clinic records were dated in November 2012. The records were associated with the claims file in November 2012. Since that time, a February 2013 report of contact with the Veteran shows that the Veteran reported that he wanted to file for an increase for his hallucinations and reported treatment at the Hazard Clinic from November 2010 to the present. The Board notes that the Veteran has repeatedly discussed his hallucinations in connection with his claim for service connection for an acquired psychiatric disorder. Unfortunately, the most recent VA treatment records were obtained in November 2012. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Therefore, these records must be obtained and associated with the claims file prior to adjudicating the Veteran's claim. With respect to private treatment, the Veteran was sent a notification letter in May 2012 requesting that he complete and submit a VA Form 21-4142, authorization and consent to release information, for each health care provider that has treated him for his claimed disabilities. The Veteran returned a signed VA Form 21-4142 identifying treatment from Dr. M.W. VA made two requests for the records and did not receive a response. However, VA did not notify the Veteran regarding the non-response from Dr. M.W. Therefore, on remand, the Veteran should be notified that the records were not obtained. 38 C.F.R. § 3.159(e) (2012). In addition, the Veteran reported private treatment at Baptist Regional Medical Center. The Board observes that records dated in March 2010 from Baptist Regional Medical Center are associated with the claims file. Thus, the Veteran should be provided authorization forms and notified that the March 2010 records from Baptist Regional Medical Center are in the claims file. Finally, a VA medical opinion was provided in May 2012. The Veteran's representative has contended that the opinion is inadequate and did not comply with the Board's May 2012 remand. The representative stated that the examiner did not address the symptoms reported by the Veteran on separation from active service or the lay statements. The representative also noted that the examiner discussed problems before service, which should not be considered as the Veteran was presumed sound upon entry to active service. In pertinent part, the examiner opined: "The claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness." The examiner was asked to comment as to whether the Veteran's symptoms noted by the drill sergeant and reported to a medical examiner in service in September 1984, subsequent alcohol abuse and treatment failure, disciplinary incidents, and symptoms reported to the discharge physical examiner in July 1985 were manifestations of an acquired psychiatric disorder that continued until diagnosed after service in 1989 and why. The examiner explained that: "No evidence exists to support a claim that a drill sergeant was aware of any manifestations of poor duty or psychiatric problems in 1984. He was self referred for eval, trying to get out of service to deal with custody issues with his children staying with his wife's parents when they enlisted together. Subsequent etoh and tx failure issues with reports from his SFC was in Germany in 1985 with missing formations and being drunk on duty. There is no evidence of any other psychiatric d/o's in the medical evidence with a completely normal MSE at time of discharge." Here, the Board finds that the VA examiner's opinion, with respect to the first question posed by the Board in the May 2012 remand, is inadequate. The Board asked the examiner to address whether the Veteran's in-service symptoms were related to his current diagnoses and whether the symptoms were manifestations of an acquired psychiatric disorder that continued until diagnosed after service in 1989. The examiner appears to base his negative opinion on the drill sergeant's awareness of whether the Veteran had psychiatric problems in 1984 and the "completely normal" mental status examination at the time of discharge. It is not apparent as to whether the examiner considered the Veteran's own statements regarding his in-service symptoms including the report of medical history completed prior to discharge from active service wherein the Veteran reported experiencing symptoms of depression, excessive worry, loss of memory, and nervous trouble or reconciled these findings with the normal mental status examination. The Veteran also submitted lay statements attesting to his behavioral changes that onset during his period of active service. Therefore, the Board finds that a new VA medical opinion is required to comply with the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). The claim for service connection for alcoholism is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran regarding the inability to obtain records from Dr. M.W and that he may submit the records himself. The Veteran should be advised to complete a VA Form 21-4142 for any other health care provider that has treated the Veteran with respect to his claimed disabilities (that have not already been obtained). The Veteran should be advised that records from Baptist Regional Center dated in March 2010 are associated with the claims file. 2. Obtain all treatment records for the Veteran from the Hazard community based outpatient clinic from May 2012 to the present and records from the Morehead community based outpatient clinic from November 2012 to the present. If requests for any records are not successful, notify the Veteran accordingly. All attempts to obtain these records must be documented in the claims file. 3. Provide the claims file to a suitably qualified VA examiner other than the psychiatrist who performed the May 2011 examination and provided the May 2012 addendum opinion. Request that the examiner review the claims file and note that the review was accomplished. Request that the examiner note a review of the Board's summary of the evidence as shown in the May 2012 remand, including the referenced service treatment and personnel documents. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that an acquired psychiatric disorder had its onset in active service or was causally or etiologically related to active service. In providing such an opinion, the examiner should answer the following questions: a. Were the Veteran's symptoms noted by the drill sergeant and reported to a medical examiner in service in September 1984, subsequent alcohol abuse and treatment failure, disciplinary incidents, and symptoms reported to the discharge physical examiner in July 1985 manifestations of an acquired psychiatric disorder that continued until diagnosed after service in 1989, and why? b. Were any of the post-service diagnoses of acquired psychiatric disorders reasonably related to any aspect of service including marital discord, divorce, separation from children, general Army barracks life, or disappointment in duty assignments and why? c. If an acquired psychiatric disorder manifested in service, is it at least as likely as not (50 percent probability or greater) that chronic alcohol abuse was proximately caused or aggravated by that acquired psychiatric disorder? Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In answering the above questions, provide a complete rationale. 4. Thereafter, readjudicate the claims in light of any additional evidence. If the claims are not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).