Citation Nr: 1421963 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 13-25 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posstraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to August 1958. In November 2008, the RO in Detroit, Michigan denied the Veteran's October 2007 claim for psychiatric disorders including a mental breakdown as well as PTSD. New and material evidence was received within one year, and the RO readjudicated, and again denied, the claim in October 2009. Again, within one year of that decision, new and material evidence was received and the claim was readjudicated and denied in April 2011 by the Tiger Team in Cleveland, Ohio (jurisdiction remains with the RO in Detroit, Michigan). On these facts, the appeal as to entitlement to service connection for an acquired psychiatric disorder is appropriately considered as pending from the original claim for service connection dated in October 2007. See 38 C.F.R. § 3.156(b) (if new and material evidence is received within the relevant appeal period, the evidence is to be considered as having been filed in connection with the pending claim). See also Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet.App. 242, 251-252 (2011); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that a claim for service connection for one psychiatric disability encompasses claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran has been diagnosed with major depressive disorder. Thus, the Board has redefined the Veteran's psychiatric appeal, as is listed on the title page of this decision. In March 2014, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. The Board notes that, in addition to the paper claims file, there are paperless, electronic (Virtual VA and VBMS) claims files associated with the appellant's claim. A review of the documents in Virtual VA reveals the Board hearing transcript as well as additional VA outpatient treatment records that are not found in the paper claims file and are relevant to the issue on appeal. The VBMS file does not presently contain any documents. Any further adjudication of the claim should consider the electronic files. The issue of whether new and material evidence has been presented for entitlement to service connection for migraine headaches was raised in the Veteran's substantive appeal as well as at the hearing before the Board, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). First, the Veteran has not been afforded a VA examination for his claimed acquired psychiatric disorder(s). A review of the VA treatment records reveals a diagnosis of major depressive disorder. The Veteran has also offered sworn testimony that he was hospitalized in service, at Fort Jackson, for 90 days for migraine headaches which led to depression and being unable to sleep and having nightmares. He reported that while he was hospitalized in service, he participated in group therapy and received medication. Following the hospitalization, he returned to duty for approximately two years. He also offered sworn testimony that he experienced depressive symptoms since service but treated his depression with home remedies for many years before seeking private treatment in 1994. Given his statements of feeling depressed in service and being hospitalized for 90 days, as well as his statements that he experienced continuous depressive symptoms since service, and his current diagnosis of major depressive disorder, a VA examination is required under McLendon v. Nicholson, 20 Vet. App. 79 (2006) to determine whether any current psychiatric disorder is causally related to active service. Regarding the Veteran's claimed hospitalization in service, the Board acknowledges that a formal finding of unavailability has been made with respect to his service treatment records; however, the Board notes that service hospitalization records are sometimes stored separately from the Veteran's other service medical records. It does not appear that clinical records have been requested with respect to his hospitalization at Fort Jackson, South Carolina. Similarly, it does not appear that records have been requested from the Surgeon General's Office. As such, records should be requested from these other locations in an effort to assist the Veteran with obtaining his service hospitalization records. Further, service personnel records may also assist the Veteran in his claim and have not been requested. As such, they should be requested and associated with the file. The Board notes that 38 C.F.R. § 3.159(c)(2) provides in pertinent part that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Additionally, the Veteran indicated that he receives all relevant treatment at the VA Medical Center (VAMC) in Detroit, Michigan. The most recent treatment record on file is in Virtual VA and dated in December 2012. To comply with VA's continuing duty to assist the Veteran in obtaining records, the AMC should request all outstanding VA treatment records and associate them with the claim file. See 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all available VA treatment records for the Veteran from the VA Medical Center in Detroit, Michigan, dated from December 2012, to the present. Any response received in conjunction with this request should be recorded in the Veteran's claims file. 2. The RO should attempt to obtain the Veteran's reported hospitalization records from the National Personnel Records Center. In particular, the RO should attempt to obtain the records from the reported period of hospitalization in 1957 at the Army hospital at Fort Jackson, South Carolina. In addition, the RO should also pursue alternative sources of evidence to support the appellant's claim, to include Surgeon General Office records. Service personnel records should also be obtained. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159. 3. Following the association of any records above, afford the Veteran a VA psychiatric examination in conjunction with the pending service connection claim for an acquired psychiatric disorder. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all findings should be set forth in detail. The paper and Virtual VA claims files and a copy of this remand should be made available to the examiner, who should review the pertinent information in conjunction with this examination. This fact should be so indicated in the examination report. The examiner should elicit from the Veteran a narrative of his history of relevant symptoms during and since service. The examiner is asked to identify and state the diagnosis of any currently manifested psychiatric disorder (including major depressive disorder noted in the VA outpatient treatment records) and describe the manifestations of each diagnosed disorder. For each such diagnosed psychiatric disorder, the examiner is asked to address whether it is at least as likely as not (a 50 percent, or greater, likelihood) etiologically related to the Veteran's period of active service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. Rationale must be explained for any opinion offered. If the examiner is unable to offer an opinion without resort to mere speculation, the examiner must explain why the opinion would require speculation. 4. Following any further development deemed appropriate, the AOJ should adjudicate the issue of service connection for an acquired psychiatric disorder. If the determination remains adverse to the Veteran, then he and his representative should be furnished with a Supplemental Statement of the Case and should be afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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 that are 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). _________________________________________________ MARJORIE A. AUER 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).