Citation Nr: 1616128 Decision Date: 04/21/16 Archive Date: 05/04/16 DOCKET NO. 09-41 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depression, claimed as secondary to service-connected prostate carcinoma, status post radical prostatectomy (prostate cancer). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who had active service from March 1969 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the San Juan, the Commonwealth of Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). (The Board notes that this matter was previously denied in April 2007 and August 2007 rating decisions, and that the August 2008 rating decision stated that it was reopening a previously denied claim. However, as additional (material) evidence (VA treatment records and a June 2008 VA examination report) was added to the record within one year of the August 2007 rating decision, the Board has construed the issue on appeal as an on-going matter not subject to the requirements of 38 C.F.R. § 3.156 for reopening previously denied claims.) This matter was previously before the Board in August 2013, when another Veterans Law Judge recharacterized the issue on appeal to include any diagnosed psychiatric disability and remanded the matter for additional development; it has been reassigned to the undersigned. As noted in the Board's August 2013 remand, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was raised by the record in an April 2013 informal hearing presentation (IHP), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on his part is required. REMAND A June 2009 VA treatment record notes the Veteran's report that his depression had its onset in 1985, at which time he was treated by Dr. Carlo, a private psychiatrist, who prescribed medication that the Veteran has continued to use since that time. On August 2013 remand, the Board instructed the AOJ to contact the Veteran and ask him to identify all relevant treatment providers and provide signed releases for VA to obtain medical records from the providers identified. In September 2013 correspondence, the AOJ requested the Veteran to identify providers and complete release forms; he was not specifically informed that records from Dr. Carlo were not yet associated with the record. The medical evidence currently of record is insufficient to assess whether any pre-existing psychiatric disability was aggravated by the Veteran's service-connected prostate cancer. (The Veteran's own lay accounts are not adequate to address that medical question.) The identified records from Dr. Carlo are critical to resolving the instant claim. Without such records, the Veteran's disability picture is incomplete; further development to obtain the records is necessary. On remand, development for all outstanding treatment records, to specifically include those from Dr. Carlo, is necessary. (The Veteran is to be advised that a governing regulation, 38 C.F.R. § 3.158, provides that where evidence (including releases for private records) requested in connection with a claim for VA benefits is not received within a year of the request, the claim will [emphasis added] be considered abandoned.) If the above development is completed, a new VA examination to determine whether a pre-existing psychiatric disability was worsened by the Veteran's service-connected prostate cancer would be necessary. (An examination is not necessary if the Veteran does not comply with the request to obtain private treatment records, as an informed opinion would not be possible without consideration of all relevant treatment records.) Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to submit authorization and release forms for VA to obtain private treatment records from Dr. Carlo, and any other private treatment providers. He must be afforded the full one year period of time provided by regulation to respond (or to expressly indicate that he will not cooperate with the request). If he responds but the response is incomplete, the AOJ must advise him that his response was incomplete, and afford him opportunity to complete it. If he provides the identifying information and releases sought, the AOJ should secure for the record copies of the complete clinical records of the identified treatment not already associated with the record. If the records are available, but not received pursuant to the AOJ's request, the Veteran must be so advised and reminded that ultimately it is his responsibility to ensure that private records sought are received. If a submission by the provider or the Veteran is incomplete, the Veteran must be so advised, and afforded the opportunity to complete the submission. If the private provider does not respond to the AOJ's request for records, and the Veteran does not submit such records upon being so advised, the claim must be further processed as abandoned under 38 C.F.R. § 3.158(a) . In addition, updated records of VA treatment must be associated with the record. 2. After the development sought above is completed (and only if additional clinical records are obtained), the AOJ should arrange for all further development indicated, to specifically include arranging for the Veteran to be examined by an appropriate VA psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability. The Veteran's entire record (including this remand and all evidence and information received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. Based on review of the record, and examination and interview of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each psychiatric disability found. (b) Please identify the likely etiology for each psychiatric disability diagnosed; specifically, is it at least as likely as not (a 50% or greater probability) that such is related to the Veteran's service or was caused or aggravated (the opinion must specifically discuss the concept of aggravation) by service-connected prostate cancer and residuals? (c) If a psychiatric disability is found to not have been incurred in/caused by service or caused by prostate cancer/residuals, but to have been aggravated by such disability, specify, to the extent possible, the degree of severity of such disability that resulted from the aggravation (i.e., identify the baseline level of severity of the psychiatric disability before the aggravation occurred, and the level of severity of the psychiatric disability after aggravation was completed). The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. 3. The AOJ should then review the record and readjudicate (under 38 C.F.R. § 3.158(a) if applicable) the claim on appeal. If it remains denied (or is dismissed as abandoned), the AOJ should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative opportunity to respond. [If the Veteran does not provide the release sought, and the AOJ determines that 38 C.F.R. § 3.158(a) does not apply, the SSOC must include explanation for such determination.] The case should then be returned to the Board. The appellant 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 2014). _________________________________________________ George R. Senyk 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) (2015).