Citation Nr: 1339984 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-17 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from June 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Board previously denied this claim in an October 2011 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (CAVC or Court), which issued an order in September 2012 approving a Joint Motion for Partial Remand (JMPR). The matter has now returned from the Court for action consistent with the JMPR. Because the Veteran did not challenge that part of the October 2011 Board decision determining that new and material had not been received to reopen the claim of entitlement to service connection for PTSD, the scope of the instant appeal is limited to a psychiatric disorder other than PTSD. See 38 U.S.C.A. §§ 7103, 7104; see also DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In order to best address the concerns raised in the JMPR, the Board now finds that this matter must be remanded for two reasons: (1) to obtain outstanding evidence and (2) to obtain a new VA examination. (1) Evidence First, the Veteran's complete service treatment records (STRs) should be obtained. Some STRs are currently in the claims file. However, those STRs indicate that the Veteran was admitted for detoxification in May 1973, and the available STRs do not contain any in-patient treatment records. Based on his record of assignments, he would have been assigned to the 595th Maintenance Company in Korea at that time. All necessary efforts should be made to contact the appropriate military hospital in Korea to determine if any outstanding in-patient records exist. Also, the Veteran's complete service personnel records should be obtained. The Veteran's attorney recently contacted the NPRC and obtained some of his personnel records. However, the response from NPRC indicates that these were only "essential documents." This leads the Board to believe that other service personnel records remain unassociated with the claims file. With regard to the Veteran's post-service treatment, the available VA medical records show treatment at the Brooklyn VA Medical Center (VAMC), the Albany VAMC and several specific private (non-VA) facilities. Notably, a June 1990 hospitalization summary report from the Brooklyn VAMC shows that the Veteran was hospitalized for approximately three months at that facility. While the hospitalization summary is of record, the inpatient treatment records are not in the file. An attempt to obtain these records must be made. Additionally, in the Veteran's June 1990 VA Form 21-526, Veteran's Application for Compensation or Pension, he indicated he had received treatment at the Brooklyn VAMC since 1989 for "nerves." See id. at item # 27 A, C & D. While there are some treatment records from that facility, they are dated in 1992 and 1993. An attempt to obtain the Brooklyn VAMC treatment records since 1989 must be made. In the VA Form 21-526 submitted in 1993, the Veteran indicated having received treatment by VA at St. Albans and Fort Hamilton. These are part of the NY Harbor Healthcare System. Thus, an attempt to obtain any outstanding VA treatment records from the NY Harbor Healthcare System from 1989 onward should be made. Treatment records in 2006 and 2007 show treatment at the Albany VAMC. It appears that may be some outstanding records from that facility. The VA treatment records from the Central Texas VAMC show that the Veteran underwent neuropsychological testing in approximately June 2009. See July 23, 2010 treatment record ("Per 6/22/2009 behavioral health discharge note: 'The patient had neuropsychological testing completed to rule out ADHD and other personality disorders.'...."). The earliest records from this facility are dated in October 2009. An attempt to obtain the treatment records from at least June 2009 (which appears to be around the time the Veteran moved to Texas) to October 2009 must be made. A September 21, 2010 VA treatment record shows the Veteran underwent MMPI-II testing. In going over the VA treatment records in the claims file, the results of such testing are not in the claims file and are relevant to the issue on appeal. Thus, an attempt to obtain the MMPI-II testing results must be made. As to outstanding private medical records, a July 1993 VA examination indicates treatment at Columbia Presbyterian Hospital, and later treatment at Harlem Hospital. The Veteran reported such treatment in connection with his psychiatric disorder. All reasonable attempts should be made to attempt to obtain these private records. Finally, a February 2012 VA record refers to a recent letter from the Social Security Administration (SSA) denying the Veteran SSA benefits. Earlier medical records indicate that this was his second claim with Social Security. Because these records SSA are potentially pertinent, they should be obtained, if available. (2) VA Examination A VA examination is necessary to address two central questions in the appeal. First, whether the Veteran is diagnosed with a current psychiatric disorder. Second, whether that current psychiatric disorder is related to service. This second question concerns whether the condition preexisted service and, if so, aggravated therein. Neither of these two questions is adequately addressed by the current record. With regard to the first question, the medical records contain conflicting assessments. For instance, some records show a diagnosis of bipolar disorder; others, such as in July 2010, indicate a diagnosis of substance induced personality change. With regard to the second question, the parties to the JMPR highlighted a VA therapist's assessment in July 2006 that the Veteran "may have had . . . the beginning of his Bipolar Disorder" during his childhood. This statement is, however, tentative and equivocal. Therefore, it is not adequate to resolve the appeal. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the case is REMANDED for the following action: 1. Private Medical Records: Send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers who may have additional records pertinent to the remanded claim. This should include treatment after service at Columbia Presbyterian Hospital and Harlem Hospital, no matter how brief that treatment may have been. This treatment would have occurred in approximately the 1990s (the Veteran reported this treatment at a July 1993 VA psychiatric evaluation). Request that the Veteran provide an Authorization and Consent to Release Information (Release) for the records. The Veteran is asked to cooperate in this endeavor, as there is an indication in the record that such records are relevant to the issue on appeal. 2. Private Medical Records: If the Veteran responds to the letter sent pursuant to paragraph 1, undertake all reasonable efforts to obtain all relevant pertinent records he identifies, if not already associated with the claims file. This effort must include an initial request and, if the records are not received, at least one follow-up request (unless a response to the initial request makes clear that the records sought do not exist or that a follow-up request for the records would be futile). If the Veteran does not provide any necessary Release, request that he obtain the records and provide them to VA. 3. VA Medical Records: Obtain all of the Veteran's VA treatment not already associated with the claims file. This should include any records available from the following VA facilities during the following time periods: (i) Brooklyn VAMC: January 1989 - July 2006; (ii) NY Harbor Healthcare System (St. Albans & Fort Hamilton): January 1989 - present; (iii) Albany VAMC: September 2006 - January 2007 & April 2008 - June 2009; (iv) Central Texas VAMC: June 2009 - October 2009, October 2010 - July 2011 & September 2012 - present. (This should include neuropsychological testing results from around June 2009 and MMPI-II testing results from September 21, 2010.) 4. Obtain from the Social Security Administration the complete records pertinent to the Veteran's claims for disability benefits. 5. All attempts to fulfill the initial development specified in paragraphs 1-4 above must be documented in the claims file. If, after making all reasonable attempts as are necessary to obtain these records, it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the AOJ should send notice to the Veteran, as directed by 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. The letter should also inform the Veteran that he may provide such records himself, notwithstanding VA's inability to obtain the records. 6. After completing the development requested in paragraphs 1-5 above, arrange for the Veteran to undergo a VA examination to determine the likely etiology of the disorder. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies, as deemed appropriate. The examiner is informed that the earliest records involving psychiatric treatment are dated in 1990, when the Veteran was hospitalized at a VA facility for approximately three months. The hospitalization summary report is in the claims file (Volume 1), and the Board is in the process of attempting to obtain the inpatient treatment records. Thus, the examiner should check to see if such records have been obtained. Both volumes of the claims file contain relevant records pertaining to the Veteran's childhood and psychiatric history. The examiner is asked to review all of these records. There are other outstanding records that VA may have obtained. Based on the record review and examination results, the examiner is requested to provide a current diagnosis and then separately and specifically address each of the following 4 questions: (a) Was any psychiatric condition manifested to any degree or incurred during service? (b) If manifested during service, did that psychiatric condition pre-exist the Veteran's entrance into service in June 1972? (c) If yes, did the preexisting condition undergo *any* degree of worsening during his service? (d) If the preexisting condition worsened during service, was such worsening beyond the natural progression of the disease? Where possible, please state the degree of probability best representing your certainty in your opinions. If you feel that the probability is "clear and unmistakable"-such that your answer would be unconditional and not subject to reasonable medical dispute-please so state. Also, please articulate the reasoning upon which your opinion is based on each of these 4 questions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how those facts and information justify your opinion. 7. After completing the requested actions, readjudicate the remanded claim with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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). _________________________________________________ Alexandra P. Simpson 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).