Citation Nr: 1400223 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 10-29 142 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and schizoaffective disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1968. This appeal to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision. In the January 2009 rating decision, the RO, inter alia, denied service connection for tinnitus and a psychiatric disorder. The Veteran filed a notice of disagreement (NOD) in October 2009, and the RO issued a statement of the case (SOC) in May 2010. The Veteran filed a substantive appeal (via a VA Form 9) in July 2010. In December 2013, Deputy Vice Chairman of the Board granted a motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2013). With the exception of the November 2013 brief by the Veteran's representative., a review of the Virtual VA paperless claims processing system does not reveal any documents pertinent to the present appeal in addition to those in the paper claims file. For reasons expressed below, the matters on appeal are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO in this appeal, prior to appellate consideration, is warranted. Initially, the Board finds that the Veteran should be afforded a VA examination in connection with claim for service connection for an acquired psychiatric disorder. Although the only psychiatric diagnoses of record are bipolar and schizoaffective disorder, the ; however, the Veteran's daughter asserted that he was first diagnosed with PTSD which has now manifested itself as bipolar and schizoaffective disorder. The Veteran was discharged from service in April 1968 and he was first hospitalized in August 1970; in the November 2013 brief, the Veteran's representative indicates that the Veteran's psychiatric disorder was manifested to a compensable degree (10 percent disabling) within approximately one year from his discharge. However, no medical opinion evidence has been presented, identified, or sought in this case. On these facts, the Board finds that an examination and opinion to obtain medical information addressing the nature and etiology of current psychiatric disability- to include whether if any psychiatric disorder manifested itself to a compensable degree within a year from discharge-would be helping in resolving the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran is hereby advised that, failure to report to the examination scheduled in connection with his claim for service connection, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records-which may contain information pertinent to both claims-to include all outstanding VA medical records--. The Board emphasizes 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 on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain all outstanding records of VA evaluation and/or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, comments from the Veteran's representative indicates that there are outstanding records from the Social Security Administration (SSA) that VA has not obtained. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. The RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain any all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND and printed copies of any relevant Virtual VA records,, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include psychological testing, if warranted) should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should clearly identify all current psychiatric disability(ies), to include bipolar disorder and schizoaffective disorder.. Then, for each diagnosed psychiatric disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability: (a) had its onset during service; (b) was manifested to a compensable degree within the first post-service year); or (c) is otherwise medically-related to service. In rendering the requested opinion, the examiner should consider and discuss all pertinent medical evidence and lay assertions. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a typewritten report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development action deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).