Citation Nr: 1335127 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-21 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder and depression. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active military duty from October 1965 to November 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2011, the Board denied an appeal of entitlement to service connection for headaches and remanded the issue of entitlement to service connection for a psychiatric disorder in order to obtain a VA examination. In December 2011, a VA mental health examination was conducted, and the examination report was obtained and added to the claims folder. In June 2012, the Appeal Management Center (AMC) issued a supplemental statement of the case (SSOC). As the requested VA examination and SSOC have been obtained, there has been substantial compliance with the November 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Board recognizes that the Veteran originally filed a claim for service connection for post concussion syndrome (claimed as a head injury), headaches, bipolar, and depression as well other conditions. The Veteran subsequently filed a notice of disagreement with all issues, arguing that his claim for post concussion syndrome should include head injury, headaches, bipolar disorder and depression. He filed a timely appeal as to all issues. In July 2009 the Veteran stated that he wished to withdraw his appeal for all previous claimed conditions. In October 2009, the Veteran stated that he wished to pursue only his claim for service connection for post concussion syndrome. In November 2011, the Board recharacterized the issues on appeal as entitlement to service connection for headaches and entitlement to service connection for a psychiatric disorder. As in the November 2011 Board decision, and pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), (holding the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record), the psychiatric claims have been listed as reflected on the title page. The Veteran's June 2009 VA Form 9 reflected his desire to participate in a hearing before a member of the Board. In an August 2011 letter from VA, the Veteran was notified that he had been scheduled for such a hearing on September 29, 2011. However, the Veteran did not appear for this hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. 38 C.F.R. § 20.704 (d), (e) (2012). Finally, there is evidence in the record to raise an informal claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. Specifically, the Veteran resigned from his job in April 2008, and stated his decision to retire stemmed from his health issues, including diabetes, mood swings, lower leg and groin problems related cellulitis and to his service-connected hernia. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability then at issue before the Board, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). However, if the Veteran asserts entitlement to a TDIU rating based in whole or in part on other service-connected disabilities which were not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit. Id. In this case, the TDIU claim specifically references the Veteran's service-connected left inguinal hernia, which is not on appeal to the Board, thus the Board lacks jurisdiction over the TDIU claim and it is referred below to the RO for further action. Thus, the issue of entitlement to a TDIU, raised by the record several times, but most notably in April 2008, has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over the claim and the claim is referred to the AOJ for appropriate action. REMAND The Board finds it necessary to remand the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder and depression, to the RO/AMC for additional development and consideration. The December 2011 VA examination report, describes the records reviewed but not included in the claims file, as VA treatment records but also references a consultation with a neuropsychologist concerning the Veteran's symptoms. While the dates and locations of the VA treatment records referenced is not specified by the VA examiner, it is likely that it references the VA treatment records after July 2008, as the July 2008 VA treatment records are the most current VA treatment records associated with the claims file. Additionally, Virtual VA does not contain any VA treatment records. Thus, on remand all relevant VA treatment records should be obtained as well as any records pertaining to the consultation with the neuropsychologist. See 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). If the above development uncovers for the first time, additional relevant evidence related to an acquired psychiatric disorder, the RO/AMC should schedule another VA examination, including a review of the new evidence. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination that takes into account the records of prior medical treatment). Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records for the Veteran from the VA Medical Center in El Paso, Texas and any associated outpatient clinics dated form July 2008 to the present. All attempts to obtain those records should be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Obtain the records, referenced in the December 2011 examination report, pertaining to the examiner's consultation with the neuropsychologist, and associate them with the claims file. 3. After undertaking the above development, and if that development uncovers for the first time, additional relevant evidence related to any psychiatric disorder, the RO/AMC should schedule the Veteran for an examination to determine the nature and etiology of any psychiatric disability. All necessary tests should be conducted. Any psychiatric disabilities should be identified. As to each diagnosed psychiatric disability, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the diagnosed psychiatric disorder was present in service, was caused by service, or is otherwise related to service, to include the 1966 incident. The complete record, to include a copy of this Remand, the claims folder and Virtual VA records, must be made available to and reviewed by the examiner in conjunction with the examination. The term at least as likely as not does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 4. If an examination is warranted, the RO/AMC must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an 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 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). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).