Citation Nr: 1616798 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 09-28 530 ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include paranoid schizophrenia and depression, not otherwise specified. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2008 rating decision in which the RO denied service connection for schizophrenia. In February 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2009. In January 2011, the Veteran and his mother, E.H., testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In April 2011, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny the claim (as reflected in a December 2012 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In August 2014, given other psychiatric diagnoses of record, the Board expanded the claim on appeal as service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and depression, not otherwise specified (consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009)), and remanded the expanded claim on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC denied the claim (as reflected in an August 2015 SSOC)) and returned the matter to the Board for further consideration. For the reasons expressed below, the matter on appeal is, again, being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further action in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on this matter. The Veteran contends that his psychiatric disorder had its onset in service. Specifically, during the January 2011 Board hearing, the Veteran testified that he experienced paranoia from fear that his parachute would fail during night parachute jumps. The Veteran stated that he sought mental health treatment around April 1970 at the Kadena Air Base in Okinawa, Japan. The Veteran's military personnel records indicate that he completed basic airborne training in 1970 and was awarded a parachutist badge in March 1970. In the August 2014 remand, the Board instructed the AOJ to obtain treatment records from the Kadena Air Base and the Naval Hospital in Okinawa. The Board also instructed the AOJ to obtain any additional evidence identified by the Veteran in accordance the current procedures set forth in 38 C.F.R. § 3.159. Records requests were sent to the Naval Hospital in Okinawa and the Kadena Air Base Medical Clinic in 2014 and 2015. A response from the Naval Hospital in Okinawa, received in January 2015, indicated that there were no records for the Veteran's recordsavailable. No response was received from the Kadena Air Base Medical Clinic. In July 2015, the AOJ also submitted a request for the records to the National Personnel Records Center (NPRC). The NPRC responded that the RO had all available records, including a November 1970 treatment record from the U.S. Army Hospital in Ryukyu Islands in Japan. Notably, the November 1970 treatment record reflects that the Veteran sought treatment for a health issue unrelated to a mental condition. Given the Veteran's testimony that he specifically sought mental health treatment at the Kadena Air Base and the lack of response from the Kadena Air Base Medical Clinic, the AOJ should submit another request to the Kadena Air Base Medical Clinic to attempt to obtain records of the Veteran's mental health treatment between June 1970 and September 1971 (the period during which he served in Japan, as explained below). Consistent with 38 C.F.R. § 3.159, the AOJ's attempts to obtain such records should continue until the records are obtained, or it is determined that the records don't exist, or that further efforts to obtain them would be futile. If the records sought are not obtained, the AOJ must render a formal finding of unavailability of such records. Regarding the above, the Board points out that, although the Veteran testified that he sought treatment at the Kadena Air Base in April 1970, the Veteran's military personnel record reflects that he was not in Japan at that time. Rather, the Veteran's military personnel records indicate that he served in Japan from June 1970 to September 1971. However, the Veteran's military personnel records also indicate that he was a "patient" at the St. Albans Naval Hospital in New York in April 1970, which is consistent with the time frame provided in the Veteran's testimony. Thus, the AOJ should contact the St. Albans Naval Hospital to attempt to obtain such treatment records. Also while this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file any additional records of mental health evaluation and/or treatment of the Veteran from the VA Medical Center in San Juan. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to include as regards private (non-VA) records), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) (2015) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted (to include arranging for an examination or to obtain a medical opinion, if appropriate), prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Request from Kadena Air Base Medical Clinic in Okinawa, Japan any records of mental health evaluation and/or treatment of the Veteran from June 1970 to September 1971. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If it is determined that any such records do not exist, or that further efforts to obtain them would be futile, render a formal finding of unavailability of. such records. 2. Request from St. Albans Hospital in New York any records of mental health evaluation and/or treatment of the Veteran in April 1970. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If it is determined that any such records do not exist, or that further efforts to obtain them would be futile, render a formal finding of unavailability of .such records. 3. Obtain from the San Juan VAMC all outstanding records of mental health evaluation and/or treatment of the Veteran dated since August 2015. Follow the procedures of 38 C.F.R. § 3.159 (2015) as regards requesting records from Federal facilities. All records and/or responses should be associated with the claims file. 4. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 5. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for an examination or to obtain a medical opinion, if appropriate), adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence added to the claims file since the last adjudication) and legal authority. 8. If the benefit sought on appeal remains denied, furnish the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).