Citation Nr: 1335679 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-06 160 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from February 1956 to February 1959. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in which the RO denied the Veteran's petition to reopen previously denied claims of service connection for an acquired psychiatric disorder and a right shoulder disorder, finding that no new and material evidence had been submitted. In December 2012, the Board subsequently reopened the Veteran's claim for service connection for a right shoulder disorder and remanded that issue on its merits, as well as his petition to reopen the previously denied claim of service connection for an acquired psychiatric disorder. In the remand, the Board instructed the agency of original jurisdiction (AOJ) to seek records of the Veteran's award of benefits from the Social Security Administration (SSA) and from the VA Medical Center (VAMC) in Salem, Virginia, for the period from 1977 to 1984. The Board also instructed the AOJ to provide the Veteran with VA examination concerning his right shoulder claim and then re-adjudicate the claims. The AOJ contacted the SSA, which responded that the Veteran's records had been destroyed and were unavailable. The AOJ notified the Veteran of this fact in April 2013. The AOJ also obtained the identified records from the Salem VAMC and scheduled the Veteran for VA examination, which was conducted in February 2013. The Veteran was then provided a supplemental statement of the case (SSOC) in January 2013, in which the AOJ again denied the Veteran's claim of service connection for a right shoulder disorder. The AOJ also reopened the Veteran's previously denied claim of service connection for an acquired psychiatric disorder and denied the claim on its merits. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Regardless of the AOJ's actions, however, the Board must address the question of whether new and material evidence has been received to reopen the Veteran's claim for service connection for an acquired psychiatric disorder. This is so because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In other words, the Board is required to first consider whether new and material evidence has been presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).) REMAND The Board finds that further development is necessary before a decision can be reached on the merits of the Veteran's claims. A review of the claims file reveals that, in a statement submitted in October 2013, the Veteran now claims to have received care at the Salem VA Medical Center (VAMC) in Salem, Virginia, in 1963, at which time he reports that a physician "ran a dye into [his] shoulder" pursuant to his claim of having experienced pain in his right shoulder from his time in service to the treatment date. Prior to the October 2013 statement, the Veteran had made no mention of having received treatment at the Salem VAMC at any time prior to 1977. (The subject of the Board's December 2012 remand was a search for Salem VAMC treatment records from 1977 to 1983, which have been associated with the claims file.) Thus, because the Veteran now reports that he first sought treatment for his right shoulder not in 1977 but in 1963, on remand the agency of original jurisdiction (AOJ) must obtain from the Salem VAMC any records of the Veteran's treatment at that facility at any time from his separation from service on February 20, 1959, to January 1, 1977 (the date from which treatment records have already been obtained from the Salem VAMC). If such records have been retired, the AOJ must make a request for the records to the Federal Records Center, to the VA Records Center, or to any other facility that may have jurisdiction over the identified records. All such requests, and all responses received, must be specifically documented in the claims file, and the Veteran notified of all efforts made to retrieve the records, before the case is returned to the Board for further adjudication. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified VA medical records may have a bearing on the Veteran's claims, on remand the AOJ must attempt to obtain the above-identified medical records, along with any other examination or treatment records identified by the Veteran, and associate any records obtained with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact in accordance with 38 C.F.R. § 3.159(e) (2013). Should the development outlined above result in further information concerning the Veteran's claimed acquired psychiatric disorder or right shoulder disorder, the AOJ should consider obtaining further VA examination or opinion. In view of the foregoing, the case is REMANDED for the following action: 1. The AOJ must conduct a search for records of the Veteran's treatment at the Salem VAMC from February 29, 1959, to January 1, 1977. If such records are found to have been retired, the AOJ must request that the Federal Records Center, the VA Records Center, or any other facility where records may have been retired, retrieve all identified records and provide them to the AOJ. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2013) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (20123). 2. After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any claim is denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ________________________________ MARK F. HALSEY 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) (2013).