Citation Nr: 1334655 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-18 267 ) 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 condition. REPRESENTATION Appellant represented by: Kathy A. Lieberman ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (RO) that reopened and denied the Veteran's claim of service connection for an acquired psychiatric disorder. Concerning the Veteran's claim, the Board notes the United States Court of Appeals for Veterans Claims' (Court's) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In its decision, the Court indicated that VA unduly limited its consideration of claims for service connection for specific mental disorders under circumstances in which other diagnosed psychiatric disabilities may be present. In this case, the Veteran's claim for an acquired psychiatric disorder (originally claimed as a "nervous condition" by the Veteran) has been expanded to encompass all acquired psychiatric disorders, pursuant to Clemons. By a decision dated in May 2008, the Board reopened the Veteran's previously denied claim and denied such on the merits. The Veteran appealed the Board's May 2008 decision to the Court. In an August 2008 Order, the Court endorsed an August 2008 Joint Motion for Remand (JMR), which vacated, in part, the May 2008 Board decision. The Veteran's claim was then returned to the Board. In a December 2008 decision, the Board again reopened the Veteran's previously-denied claim for service connection and remanded such for further procedural development, as instructed by the Court-adopted August 2008 JMR. In a March 2010 decision, the Board again denied the Veteran's claim for service connection for an acquired psychiatric disorder. Again, the Veteran appealed the Board's March 2010 decision to the Court. In an August 2010 Order, the Court endorsed an August 2010 JMR, which vacated the March 2010 Board decision. The Veteran's claim was later denied in an October 2010 Board decision. In a November 2011 memorandum decision the Court again remanded the Veteran's claim to the Board for further development. Most recently, the Board denied the claim in June 2012, after which, by way of a January 2013 Order, the Court endorsed a December 2012 JMR. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. The Board has reviewed the electronic claims file and notes that its contents include only one document, a March 2006 letter to the Veteran related to VA's duties to notify and assist. The appeal is remanded to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND This claim has a lengthy procedural history, but unfortunately the claim must be remanded for the following additional development in accordance with the December 2012 JMR. Initially, the Board finds that the Veteran submitted evidence of award of Social Security Administration (SSA) disability benefits. Specifically, the claims files include an April 2006 SSA Mental Residual Functional Capacity Assessment, as well as a May 2006 Notice of Award from SSA. The record reflects that the RO requested SSA disability records twice, once in August 2006 and once in November 2006. VA regulation requires VA to make as many requests as are necessary to obtain relevant records from a Federal department or agency, such as SSA. 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. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2) (2013). In this case, following the two 2006 requests, no records were received, and no response was received indicating that the records are unavailable. The RO made no additional efforts to obtain the records. The Board finds, in accordance with the December 2012 JMR, that the efforts by the RO do not satisfy the requirements of 38 C.F.R. § 3.159(c)(2). VA must request the Veteran's SSA medical records in conjunction with his application for benefits. See Hayes v. Brown, 9 Vet. App. 67 (1996) (holding where VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision and the supporting medical documents on which the decision was based). The Veteran was afforded a VA examination in February 2009. The VA examiner confirmed the Veteran's diagnosis as an anxiety disorder, but found that the disability is not related to the Veteran's active military service "as there is no concrete evidence of complaints or treatment and Veteran's subjective version of events is unsustained and in some cases...not true to fact." In the analysis, the examiner reported, "The Veteran has mentioned that he was treated by a fee-basis psychiatrist, Dr. Correa Grau, but we did not find any copies of such records or treatment in the Veteran's C-folder." The Board's review of the record, however, clearly shows records from Dr. Correa Grau dated in 1977, 1981, 1982, and 1983. It is unclear why the VA examiner overlooked these records, however it is clear that the VA examiner's opinion was not based upon a review of the complete record. Similarly, the VA examiner stated that the Veteran reported VA treatment in 1976. The examiner found that "although there is mention of a psychiatric admission in 1975, of which the only evidence is a copy of a VA form submitted by Veteran that shows he was admitted to the VA hospital from September 19 to November 7, 1975. This form does not show where he was admitted or the condition for which he was hospitalized." In fact, the Veteran's claims files contain, in addition to the "mention of a psychiatric admission in 1975," several pages of VA records of mental health treatment in September and October 1975. These records appear to have been added to the claims folders after the February 2009 VA examination. An opinion or examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derminski, 1 Vet. App. 121, 124 (1991). For these reasons, the February 2009 VA examiner's analysis is inadequate. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Thus, following the development of the SSA records, the Veteran must be afforded a new VA examination to assess the current nature and the etiology of his acquired psychiatric disorder. In addition to considering the Veteran's complete medical history, the VA examiner must consider the translated documents in the claims files, to include several buddy statements from fellow veterans, which include statements indicating that during service the Veteran was fearful, depressed, isolated, experienced trouble sleeping, anxious, and confused. Ignoring such evidence would render the report inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury, but relied on the service treatment records to provide a negative opinion). The Board indeed recognizes that the Veteran, by way of his representative, submitted a private medical opinion favorable to his claim in February 2013. The physician thoroughly summarized the Veteran's medical history and concluded that it is more likely than not that the Veteran "entered the prodromal phase" of his psychiatric disability by February 1971, "and as likely as not that he entered the prodromal phase while still on active duty." The physician pointed to medical documentation of treatment in February 1971 as the basis for the opinion that the prodromal phase was entered into by that time, but gave no basis for the opinion that the prodromal phase manifested in service. The Veteran separated from service in June 1970, some eight months prior to February 1971. Nonetheless, on remand, the VA examiner should indeed consider the February 2013 private opinion in the analysis of the claim. Finally, the Board notes that it is VA's duty to assist the Veteran in obtaining treatment records relevant to his claim. 38 C.F.R. § 3.159(c)(1) and (2) (2013). The record in this case reveals that the Veteran has received both private treatment and VA treatment from the San Juan VA Medical Center (VAMC) for the condition under appeal. The most recent private records available for the Board's review are dated in 2006, and the most recent VA treatment records available for the Board's review are dated in May 2005. On remand, ongoing, non-duplicative records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO must obtain all relevant treatment records, which have not previously been obtained, to include all VA medical records from May 2005 through to the present from the San Juan VAMC or any other facility in which the Veteran received treatment. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the records, the RO is unable to secure same, 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 RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Contact the Social Security Administration (SSA) and make as many attempts as are necessary for the purpose of obtaining a copy of the decision and all medical records relied upon in conjunction with any claim filed by the Veteran for SSA disability benefits. Any attempts to obtain records that are ultimately unsuccessful, must be documented in the claims folder. 3. Once the record is developed to the extent possible, the Veteran should be afforded the appropriate VA examination to determine the nature and etiology of his psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's in-service and post-service medical records, to include any pertinent records in his electronic file, and his lay assertions, as well as the buddy statements submitted and translated. The examiner must take into account the Veteran's lay statements made both in the record as well as any statements made at the time of examination, especially as relate to the initial onset of symptoms of the claimed disability. The examiner must also consider the other physicians' opinions throughout the course of this longstanding claim, to include the most recent opinion from a private physician in February 2013. The examiner should identify all current disorders with respect to the Veteran's reported symptoms. Once the appropriate diagnosis is confirmed, the examiner should express an opinion as to whether the current disability is at least as likely as not (50 percent likelihood or greater) causally or etiologically related to any period of active duty as opposed to its being more likely due to some other factor or factors. In particular, the examiner should assess: * Whether it is as likely as not that the Veteran's psychiatric disorder initially manifested during his period of active service or is otherwise shown to be due to service, taking into account the Veteran's and the Veteran's buddies' statements related to his in-service symptoms; and * Whether it is as likely as not that the Veteran reached the "prodromal phase" of his current disorder during his period of active service, taking into account the Veteran's and the Veteran's buddies' statements related to his in-service symptoms. (The term '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 would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important that each disability be viewed in relation to its history (38 C.F.R. § 4.1 (2013), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner for review. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims file and must reflect that it was sent to his last known address of record. If he fails to report, the claims file must indicate whether the notification letter was returned as undeliverable. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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. 2013). _________________________________________________ L.M. BARNARD 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).