Citation Nr: 1509202 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 07-16 393 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include depression. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 RO decision. The Board remanded the case for evidentiary and procedural development in August 2010 and April 2012. In November 2012, the Board denied the appeal. The Veteran perfected a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In a January 2014 memorandum decision, the Court vacated and remanded the Board's November 2012 denial. The Veteran and his attorney have been provided with all due process notifications, and his attorney has filed further evidence and argument, along with a waiver of initial RO review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action on his part is required. REMAND The Court vacated and remanded the Board's decision on the basis that the Board had failed to properly apply the provisions of 38 U.S.C.A. § 1111 involving the presumption of soundness and whether clear and unmistakable evidence had been submitted to rebut the presumption. The Court noted that because the Veteran's medical entrance examination was negative for any psychological conditions, 38 U.S.C.A. § 1111 is potentially applicable to the Veteran's claim. The presumption of soundness can be rebutted where "clear and unmistakable (obvious or manifest) evidence demonstrates that an injury . . . existed prior thereto and was not aggravated by such service." 38 C.F.R. § 3.304(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence means evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). In this case, the Court observed that the evidence indicating a pre-existing disability apparently consisted of "a premilitary history of substance abuse and aberrant behavior," and found that the Board did not adequately analyze whether this premilitary history constituted clear and unmistakable evidence sufficient to rebut the presumption of soundness. The Court also found that the Board failed to address whether a November 2010 VA medical opinion was adequate, in light of the Veteran's strong objections to the opinion being based upon a records review only, rather than upon a clinical examination of the Veteran. After the Court's remand, the Veteran's attorney obtained a medical opinion which is favorable to the Veteran's claim, and which was based upon both a records review and also a telephone interview with the Veteran. The Board notes that the most recent VA treatment records contained in the Veteran's claims file are dated in 2010. According to a request from his attorney for a copy of the report, it appears that the Veteran may have undergone a recent VA examination in October 2014. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, his VA medical records should be updated for the file. Additionally, we note that at one point, the Veteran reported that he had seen a psychiatrist at the Minneapolis VA Medical Center in the 1980s. The RO asked him in March 2007 to identify the particular dates of this treatment. The Veteran did not respond, and no further action was taken. The Board deems that further attempts to obtain any treatment records from the 1980s are required, as these records are constructively of record. 38 C.F.R. § 3.159(c). Although there are private medical records from the 1980s, the earliest VA records currently available for review are dated in 2003. After fully developing the record, the Board is of the opinion that the Veteran should be provided with another VA examination so that a medical expert can provide the appropriate opinions. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA medical treatment afforded to the Veteran since 2010, to include reports of all VA examinations conducted in 2014 for purposes of compensation for inclusion in his claims file. 2. The RO should obtain records reflecting any VA medical treatment provided to the Veteran at the Minneapolis VA Health Care System and all related clinics from 1980 through 2003. Since these would be paper records, searches should be made of any archived or retired records, with documentation as to the results. 3. Only after obtaining the above medical records, to the extent they are available, then the Veteran should be afforded a VA clinical psychiatric examination to obtain opinions as to etiology of his psychiatric disorders. The claims folder must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. It is important in this case that adequate time is scheduled for the examination so that the Veteran may fully discuss his medical history, as he contends he has not been offered an opportunity to fully explain what happened to him during service. After a complete review of the medical evidence, including that obtained pursuant to the above requests, any tests and studies deemed helpful, and a clinical interview with the Veteran, the examiner is requested to determine: a) whether as a medical question, the Veteran undebatably had a psychiatric disability prior to service; b) if so, whether from a medical perspective, that pre-existing disability undebatably underwent an increase in disability beyond the natural progress of the disability during service or whether any increase in the disability during service was due to the natural progress only; or c) if not, whether the current psychiatric disorders are as likely as not related to his military service. In any event, the examiner must discuss the contribution and impact of the Veteran's pre-and post-service documented drug use, and also the contribution and impact of his 1979 workplace injury upon his psychiatric condition (please see medical records from the 1980s contemporaneous to this incident). The complete rationale for all opinions expressed should be fully explained. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).