Citation Nr: 1433503 Decision Date: 07/28/14 Archive Date: 08/04/14 DOCKET NO. 11-13 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include schizophrenic reaction. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty for nineteen (19) days in August 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's May 2011 VA Form 9, substantive appeal, he requested a videoconference hearing before the Board. In a statement received in February 2013, he withdrew such request. The Board notes that the Veteran's appeal has been characterized and developed as a claim to reopen the previous (September 1967) denial. However, under 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. An award based in whole or in part on these additional service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later. 38 C.F.R. § 3.145(c)(3). However, the claim will not be reconsidered under 3.156(c) if the service records associated with the file subsequent to the initial rating decision could not have been obtained when VA first decided the claim, either because they did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). In this case, at the time of the September 1967 rating decision, the only service department records of record included a July 1966 Report of Medical Examination with audiogram, an August 1966 Mental Hygiene Division Evaluation, one page dental record, a treatment record dated August 1966 showing a diagnosis of pes planus, and an August 1966 Report of Medical History for separation. A review of the record shows that in 1975, VA received the Veteran's May 1966 Report of Medical History for enlistment. This service department record was not previously considered in the September 1967 rating decision. This record is pertinent because it includes relevant notations of depression and excessive worry. Given the submission of this new service department record, the Veteran's service connection claim must be reconsidered without regard to the previous final denial. 38 C.F.R. § 3.156(c). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board notes that the Veteran has not been afforded a VA examination to determine the etiology of his psychiatric disability and whether such may be related to his military service, to include aggravation of a pre-existing condition. Service treatment records indicate the Veteran was treated by the Mental Hygiene Division Evaluation for confusion and administratively discharged due to such. Post-service treatment records show near continuous treatment for schizoaffective disorder. Accordingly, an examination to secure an etiological opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Post-service treatment records note the Veteran was hospitalized on a number of occasions and was treated in various in-patient facilities. Records of such treatment may constitute pertinent evidence and must be secured. Further, the most recent VA treatment records associated with the Veteran's claims file are dated in March 2011. Any records of VA treatment for the disability at issue since then would constitute pertinent evidence, are constructively of record, and must be secured. See generally, 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The AOJ shoulder secure and associate with the record updated records of all VA treatment the Veteran has received for his psychiatric disability since March 2011. 2. The AOJ should ask the Veteran to provide identifying information regarding (and the authorizations necessary for VA to secure records of) all private treatment he has received for his psychiatric disability. The AOJ should then secure complete clinical records from those sources identified. If such records are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to a VA request for records, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 3. After the development sought above is completed, the AOJ should arrange for a psychiatric examination of the Veteran by a VA psychologist or psychiatrist to determine the nature and likely etiology of any psychiatric disability entity he may have. The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed appropriate should be completed. Based on examination of the Veteran and review of the record, the provider should prepare an opinion that responds to the following: a. Please identify (by medical diagnosis) each psychiatric disability currently shown (and the symptoms and impairment attributable to such disability). b. For each psychiatric diagnosis found, please indicate when such was initially manifested (as shown by the record), i.e., (i) prior to service, (ii) during service, or (iii) post service. Please identify the symptoms which establish the presence of the diagnosis at the time. c. As to any psychiatric disability diagnosed that was first manifested prior to service, please indicate whether such was aggravated by service (increased in severity therein). Please identify the factual data that support the response. d. For each psychiatric disability diagnosed that was not first manifested prior to service, please identify the most likely etiology, specifically, is it at least as likely as not (a 50% or better probability) that such is related to the Veteran's service, to include any disease, injury, or event therein. 4. The AOJ should then review the record and readjudicate the matter on appeal. If the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ ROBERT E. SULLIVAN 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).