Citation Nr: 1337138 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 07-06 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran had active service from March 1979 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating action by the above Department of Veterans Affairs (VA) Regional Office (RO). In July 2009 and June 2013, the Veteran testified at hearings conducted before two different Veterans Law Judges (VLJ), respectively. Transcripts of these hearings have been associated with the claims file. The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2013). The United States Court of Appeals for Veterans Claims (Court) recently held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Pursuant to the Court's recent holding in Arneson, during the course of the June 2013 Board hearing, the Veteran was notified that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal. A review of the June 2013 hearing transcript (p. 2) reflects that the Veteran specifically waived his right to a third hearing and requested that his case be adjudicated as soon as possible. Therefore, in accordance with Arneson, an additional hearing is not needed. [Later in June 2013, the Veteran submitted some additional evidence for the record which was accompanied by a waiver.] The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, the Board finds that the claim must again be remanded for further development. At the June 2013 hearing, the Veteran reported that there are outstanding records related to his service connection claim. Namely, he described current VA treatment records from Carrollton (VA outpatient clinic) and records from the Ridgeview Institute (psychiatric and addiction treatment center). The record was held open for 30 days following the hearing for the Veteran to submit these records, but he has not yet done so. Additionally, there is evidence that the Veteran's psychiatric problems may have preexisted service, and now the Veteran contends that service aggravated these problems. The VA examinations of record have addressed only whether the Veteran's psychiatric disorders had their onset during or are otherwise related to military service, but there are no opinions directly addressing the issue of aggravation. The December 2011 VA examiner specifically indicated that the Veteran's psychiatric problems appeared to have started in childhood and did not have their onset during service. However, she did not provide an opinion with respect to the possibility of aggravation during service. In light of the above, the Board finds that the RO/AMC should attempt to obtain these outstanding records identified by the Veteran, and a new VA opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran's claimed psychiatric disability. Specific attempts should be made to obtain the outstanding records from Carrollton VA outpatient clinic, as well as any outstanding records from the Ridgeview Institute. The Veteran should be provided with the necessary authorizations for the release of any such records. All attempts to retrieve these records should be documented in the claims file. 2. Then, the Veteran's claims file, including any pertinent evidence contained in an electronic format, should be forwarded to an appropriate VA examiner for an opinion as to the nature and etiology of the Veteran's psychiatric disorder. The examiner should note that the claims file has been reviewed. (a) After reviewing the file, the examiner should identify all current psychiatric disability or disabilities present. (b) For any psychiatric disability identified, the examiner should opine as to whether such disability clearly and unmistakably preexisted service. If so, the examiner should offer an opinion as to whether such disability clear and unmistakably was not aggravated in service. (c) If any identified psychiatric disorder did not preexisted service, the examiner should opine as to whether it is at least as likely as not that any such disorder had its onset in service; or is otherwise related to service. (d) If any current personality disorder is found, the examiner should offer an opinion as to whether it is at least as likely as not that such disorder was subject to any superimposed disease or injury in service, or otherwise permanently aggravated during military service? The term "at least as likely as not" does not mean "within the realm of medical possibility," but rather means the weight of evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale for any opinions proffered should be provided. If the examiner is unable to provide any requested opinion, he or she should fully explain why such opinion could not be rendered. If the examiner determines that an actual examination of the Veteran is necessary, such an examination should be scheduled. 3. Thereafter, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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 claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ________________________________ MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals ____________________________ ___________________________ THERESA M. CATINO DAVID L. WIGHT Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).