Citation Nr: 1340972 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-27 461 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disability, to include bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who had honorable active duty service from November 1972 to May 1982. [He had further service from May 1982 to August 1987, which a January 1989 VA administrative decision found to be dishonorable (and a bar to VA benefits based on/flowing from such period of service).] This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Waco, Texas RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2013). Regarding the Veteran's claim seeking service connection for bipolar disorder, that is the specific claim adjudicated by the RO and developed for appellate review. However, in an interim precedent decision (Clemons v. Shinseki, 23 Vet. App. 1 (2009)), the U.S. Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of a service connection for a psychiatric disability claim (and that such matter(s) is/are before the Board). Notably, the Veteran has also been diagnosed with major depressive disorder with psychotic features. The rating decision on appeal addressed only bipolar disorder. As the RO has not developed or adjudicated the matter of service connection for psychiatric disability other than bipolar disorder, this must be done on remand for compliance with Clemons. The issue is characterized accordingly. The Veteran has stated (and he is competent to observe) that he has continued to have psychiatric symptoms since his separation from service. Given the medical evidence of a current psychiatric disability, and the lay statements from the Veteran that he has experienced continuous psychiatric symptoms since service, the "low threshold" standard outlined in McLendon is met. The question presented (whether based on the entire record the Veteran has a current psychiatric disability, related to a qualifying period of service) is a medical question, and a VA nexus examination is necessary to determine the nature of, and likely etiology for, any current psychiatric disability. Additionally, the record (in Virtual VA) indicates that the Veteran receives Social Security Administration (SSA) disability benefits (the disability/disabilities on which the award is based is unclear). A review of the claims file found that copies of the SSA decision and underlying medical records have not been secured for the record. As they are constructively of record, and the Board is unable to conclude that they would not be relevant to this claim, such records must be secured. Further, in his June 2009 claim statement, the Veteran reported that he was first had a psychiatric disability diagnosed at a private hospital in Dallas, Texas in 1987. A review of the record found that the RO has not sought records of such private treatment. Treatment records showing the initial diagnosis of a disability for which service connection is sought are pertinent evidence in the claim for service connection, and must be secured. The Veteran is advised that under 38 C.F.R. § 3.158(a), where evidence (to include identifying information and releases for VA to obtain private records) requested in connection with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned. Finally, records of any outstanding VA treatment the Veteran may have received for psychiatric disability may contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following action: 1. Regarding the matter of service connection for psychiatric disability other than bipolar disorder, the RO should send the Veteran a letter providing him all VCAA-mandated notice, and afford him and his representative the opportunity to respond. The RO should arrange for any further development in the matter suggested by his response. 2. The RO should secure for the record copies of all outstanding (any not already associated with the claims file) clinical records of VA treatment the Veteran received for psychiatric disability. The RO should also ask the Veteran to identify all providers of private evaluation and/or treatment he has received for psychiatric disability, and to provide authorizations for VA to secure the complete clinical records of all such treatment and evaluations, specifically including all records of his treatment at the [unspecified] Dallas, Texas hospital. The RO should secure for association with the record the complete clinical records outstanding from all providers identified. 3. The RO obtain from SSA a copy of their determination on the Veteran's claim for SSA disability benefits, and copies of the medical records on which the determination was based. 4. The RO should then (after the development sought above is completed) arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine the nature and likely etiology of his psychiatric disability/disabilities. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) each psychiatric disability found. (b) Please identify the likely etiology for each psychiatric disability diagnosed, and specifically whether such disability is at least as likely as not (a 50% or better probability) related to the Veteran's military service from November 1972 to May 1982 and/or any documented events therein. The examiner should note that the Veteran is not eligible for VA benefits based on service from May 1982 to August 1987. The examiner must explain the rationale for all opinions offered. 5. The RO should then review the record and readjudicate the claim (to encompass all psychiatric diagnoses found. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 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). _________________________________________________ George R. Senyk 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).