Citation Nr: 1333654 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-17 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from September 1975 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 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 This case was previously before the Board in May 2013, at which time the Board noted that after the RO issued a supplemental statement of the case in January 2013 and recertified the appeal to the Board, the Veteran, in a statement received in March 2013, reported that he was receiving treatment from the Muncie Community Outpatient Facility in Muncie, Indiana. The Veteran specifically indicated that he was receiving treatment from Dr. Robin "Margaret" Lett, and that the evidence of this treatment "would be in my favor of my appeal." In a letter dated April 4, 2013, the Veteran's representative asserted that the Veteran appeared to request a remand in order to obtain recent treatment records. The Board agreed with the representative's interpretation and determined that the appeal should be remanded so that VA could attempt to obtain the records identified by the Veteran and associate them with the claims file. In addition, in the event that additional records were received, the RO was directed to arrange for the examiner who conducted the November 2011 VA examination and the October 2012 addendum to state whether there were any additions or changes to the opinions expressed in the report from the November 2011 VA examination and October 2012 addendum based on this new evidence. In correspondence dated in May 2013, the Appeals Management Center (AMC) informed the Veteran that it would be developing additional evidence concerning his appeal, and asked that he provide the dates of treatment by Dr. Lett at the Muncie Community Outpatient Facility, as well as authorization to obtain the records on his behalf. The Veteran did not respond to the AMC's May 2013 correspondence. Nevertheless, a review of the Virtual VA database indicates that 496 pages of treatment records dated from June 1997 to May 2013, to include treatment records from Dr. Lett at the Muncie Community Outpatient Facility, were uploaded to the Virtual VA database in June 2013. Pursuant to the Board's remand instructions, a VA addendum opinion was obtained in July 2013 in which the psychologist opined that there were not any changes or additions to be made to the previous medical opinions, as a review of the Veteran's treatment records showed that his chronic history of severe chemical dependency and personality dysfunction continued to be his primary diagnoses and arose "separately from and before military." The AMC continued to deny the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder in the July 2013 supplemental statement of the case. Curiously, however, it does not appear that the AMC actually reviewed or was aware of the availability of the Veteran's newly-acquired treatment records. Indeed, the newly acquired VA records are not specifically listed in the "Evidence" section of the supplemental statement of the case, nor are they referenced in the "Reasons and Bases" section. To the contrary, the supplemental statement of the case indicated that, "On May 17, 2013 we sent you a letter informing you of the status of your appeal. We asked that you submit additional evidence to substantiate your appeal. Since you did not provide the requested evidence within 30 days of that letter, evidence that might have been material to the outcome of this claim could not be considered." This suggests that the Ratings Veterans Service Representative (RVSR) who authored the July 2013 supplemental statement of the case did not access and review the additional VA treatment records uploaded to the Virtual VA database in June 2013. The failure of the July 2013 supplemental statement of the case to reference the additional VA treatment records which were the impetus for the Board's May 2013 remand perhaps led to the Veteran's representative's erroneous allegation in a July 2013 statement that VA had made no effort to obtain treatment records from Dr. Lett. However, although VA did obtain the Veteran's treatment records from Dr. Lett and upload them to the Virtual VA system, it does not appear that these records were directly considered by the AMC when issuing the July 2013 supplemental statement of the case. Significantly, the Veteran did not include a waiver of agency of original jurisdiction (AOJ) review of this evidence. As the Veteran has not waived agency of original jurisdiction consideration of the evidence submitted, the case must be remanded for additional development. 38 C.F.R. § 20.1304(c) (2012). Due process concerns require a remand to allow for AOJ review of the additional evidence. Accordingly, the case is REMANDED for the following action: Review all evidence received since the July 2012 supplemental statement of the case, to specifically include treatment records from Dr. Robin "Margaret" Lett of the Muncie Community Outpatient Facility, which have been uploaded to the Virtual VA database, and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. Allow an appropriate period of time for response by the Veteran. Thereafter, return the case to the Board for further appellate consideration, if in order. 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). _________________________________________________ U. R. POWELL 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).