Citation Nr: 1517649 Decision Date: 04/24/15 Archive Date: 05/04/15 DOCKET NO. 13-13 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder for the purpose of establishing eligibility to treatment. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder for compensation and treatment purposes. The United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. The Veteran has been provided with varying diagnoses for various psychiatric disorders by treatment providers and VA examiners. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection to an acquired psychiatric disorder. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Reason for remand: To obtain outstanding relevant VA treatment records and provide the Veteran with corrective notice. The Veteran was provided with a VA mental health examination regarding his claim for service connection for an acquired psychiatric disorder in September 2012. At that time, the Veteran reported that he was then currently receiving treatment at the Boise VA Medical Center (VAMC) Mental Health Clinic where he was prescribed medication. He stated that the treatment was initiated by a private physician and then transferred to VA in June 1997. Although the claims file contains a few VA treatment records from 1997 and 1998, all other records of mental health treatment through the VAMC remain outstanding. 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). On remand, the AOJ must take action to obtain all records of VA treatment from 1997 to the present, and associate them with the file. Additionally, although the Veteran was provided with notice of the elements and evidence needed to establish service connection for compensation purposes, he has not been provided with adequate notice of the criteria for service connection for the purpose of establishing eligibility to treatment only, under 38 C.F.R.§ 1702. On remand, corrective notice should be sent to the Veteran and his representative. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with corrective notice with regard to his claim for service connection for an acquired psychiatric condition for treatment purposes only, containing notice of the criteria necessary to substantiate a claim under 38 U.S.C.A. § 1702. 2. Obtain any and all of the Veteran's VA treatment records from January 1997 to the present, including records of treatment with the Boise VAMC Mental Health Clinic. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 3. After completing the aforementioned directives, and conducting any further development deemed necessary, to potentially include obtaining a supplemental VA medical opinion to consider any new relevant evidence, readjudicate the claims of entitlement to service connection for an acquired psychiatric disorder for compensation and for treatment purposes in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER 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).