Citation Nr: 1334342 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-02 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than major depressive disorder and posttraumatic stress disorder (PTSD), claimed as psychosis with neurosis. ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from October 1989 to January 1993. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas which denied a claim to reopen a previously denied claim of entitlement to service connection for a major depressive disorder and denied service connection for a psychiatric disorder, claimed as psychosis with neurosis. In June 2010, the Board issued a decision that denied the Veteran's claims. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court issued a memorandum decision that vacated the portion of the June 2010 Board decision that denied entitlement to service connection for a psychiatric disorder, and remanded that matter to the Board for action in compliance with the instructions in the memorandum decision. In July 2010, the Veteran executed a VA Form 21-22a (Appointment of Individual as Claimant's Representative) in favor of a private attorney. In February and March 2013, the attorney moved to withdraw as his representative. The Board granted that motion in September 2013. Accordingly, the Veteran is currently proceeding pro se. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. 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 The Board finds that a remand of the Veteran's claim for service connection for an acquired psychiatric disorder other than major depressive disorder and PTSD, claimed as psychosis with neurosis, is necessary before the Board decides this appeal. The Veteran contends that he has a psychiatric disorder claimed as psychosis with neurosis that is related to his service. The Veteran's STRs are not of record. Post-service medical records show that the Veteran was diagnosed with a severe major depressive disorder with psychosis in June 2006. On VA general medical examination in June 2010, the examiner diagnosed chronic depression with psychosis and neurosis. In July 2010, the Veteran reported having mental illness since 1993, although he denied seeking any treatment until 2006. The examiner diagnosed schizoaffective disorder, depressed type. The Veteran was afforded a VA PTSD examination in June 2011 at which time he presented with a history of anger problems that dated back to around 1993 or 1994. The examiner diagnosed schizoaffective disorder, depressed type, per history. In the June 2011 Memorandum Decision, the Court found that in its June 2011 decision, the Board did not provide adequate reasons and bases for determining that VA was not required to provide a medical examination regarding the Veteran's denied claim for service connection for a psychiatric disorder other than major depressive disorder and PTSD. The Court found that the evidence of record indicates that the Veteran reported that he experienced fear and guilt in service as a result of firing weapons, reported that his psychiatric symptoms begin in service and continued since service, and was diagnosed with a psychosis. The Court noted that the Board found the Veteran's lay statements regarding the onset and continuity of his symptomatology were both competent and credible and found that a remand was required for the Board to address whether the Veteran's competent and credible lay statements establish the occurrence of an in-service event and whether that event may be associated with the Veteran's diagnosed psychosis for purposes of affording the Veteran a VA medical examination. Upon further review of the evidence of record, and in light of the assertions contained in the Memorandum Decision, the Board finds that the June 2010 and June 2011 VA examinations are inadequate for adjudication purposes in as much as neither examiner provided an opinion as to whether the Veteran has a psychiatric disorder other than major depressive disorder and PTSD that is related to his active service. It is important to note here that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr, 21 Vet. App. 303. Accordingly, the Board finds that an opinion should be obtained as to whether the Veteran has a psychiatric disorder, other than major depressive disorder and PTSD, that is related to his active service. In addition, a review of the Veteran's Virtual VA electronic claims file and paper claims file, shows that the most recent records are dated in June 2012. Thus, the Veteran's outstanding VA treatment records, if extant, must be secured on remand. See 38 C.F.R. § 3.159(c) (2), (c)(3) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). Finally, in August 2006, the RO obtained a copy of the Veteran's Personnel Qualification Record and associated it with the claims file. However, in November 2010, the Veteran submitted DA-Form 638-1, Recommendation for Award of LM and Below, dated in May and June 1990. In addition, in January 2012, the Veteran's former representative stated that it appears that the military possesses relevant arrest records that should be obtained. As it appears that the Veteran's service personnel file is incomplete, to include outstanding arrest records, the RO or the AMC should attempt to obtain such records, as they may be pertinent to his claim. Accordingly, the case is REMANDED for the following actions: 1. The RO or the AMC should advise the Veteran of his right to appoint a new representative, if he so chooses. 2. The RO or the AMC should furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. The RO or AMC should attempt to obtain a complete copy of the Veteran's service personnel records and any pertinent unit records, to include any pertinent arrest records. All attempts to obtain such records, and any negative responses to requests for such records, should be documented in the claims file, and any records obtained should be associated with the claims file. 4. The RO or AMC should undertake appropriate development to obtain any outstanding, pertinent medical records and associate them with the physical OR virtual claims file, to include associating with the claims folder all pertinent VA treatment records dated from June 2012, to the present. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. 5. Then, schedule a VA examination or evaluation to determine the nature and etiology of any current acquired psychiatric disorder other than major depressive disorder, including psychosis with neurosis, and PTSD. The claims folder should be reviewed and that review should be indicated in the examination report. The rationale for all opinions should be provided. Specifically, the examiner should provide the following information: After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should identify all current psychiatric disorder(s) found. With respect to each psychiatric diagnosis other than major depressive disorder including psychosis with neurosis, and PTSD, the VA examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder: (1) had its onset in or is otherwise related to the Veteran's period of active duty or (2) if a psychosis is diagnosed, the examiner should indicate whether it was manifested within one year after the Veteran's period of active duty. In rendering the requested opinions, the physician should specifically consider and discuss the Veteran's contentions, the lay statements of record, his service personnel and treatment records, and his post-service private and VA medical records. The examiner must be informed that the Board accepts as credible the Veteran's assertion that he experienced fear and guilt as a result of firing weapons during service and has continued since his discharge from active service. If the examiner determines that he or she cannot provide an opinion on the issue at hand without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. 6. Thereafter, readjudicate the Veteran's claim. If any benefits sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case, and an appropriate period of time should be allowed for response before the 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). _________________________________________________ Michael J. Skaltsounis Acting 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) (2013).