Citation Nr: 1620464 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 07-00 021A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). (The issues of entitlement to service connection for a gastrointestinal disorder and entitlement to payment or reimbursement of unauthorized medical expenses are addressed in two other separate Board decisions). REPRESENTATION Veteran represented by: Eric A. Gang, Attorney at Law ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the U.S. Marine Corps from February 1973 to September 1975 and in the U.S. Air Force from February 1985 to October 1985. He also served in the Air Force Reserve, Marine Corps Reserve, and Army and Air National Guards of various states from 1975 to 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of case has since been transferred to the RO in Roanoke, Virginia. That office forwarded his appeal to the Board. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) reveals additional service treatment records, service personnel records, attorney letters, Veterans Service Organizations (VSO) briefs, and VA treatment records that have been reviewed by the Board. The Veteran requested a Travel Board hearing at the RO during the course of the appeal. A Travel Board hearing was scheduled for July 2015. However, the Veteran cancelled that request in June 2015. Therefore, the Travel Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2015). In an earlier December 2010 Board decision, the Board denied the Veteran's claim for service connection for PTSD. The Veteran appealed the Board's December 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2011 Order, the Court vacated and remanded the Board's decision as to issue of service connection for PTSD, for proceedings consistent with a Joint Motion for Remand (Joint Motion). Upon return from the Court, the Board remanded the PTSD issue in May 2012 for further development. The case has been returned to the Board for further appellate consideration. The Veteran has chosen two different representatives with respect to the three separate issues he has appealed to the Board. With regard to the acquired psychiatric disorder / PTSD issue on appeal, he has chosen an attorney as listed above to represent him for only this issue. In addition, the issue of entitlement to payment or reimbursement of unauthorized medical expenses has a different Agency of Original Jurisdiction (AOJ), and is based on completely different laws and facts that the other two issues. According to BVA Directive 8430, Board of Veterans' Appeals, Decision Preparation and Processing, paragraph 14(c)(11), if different representatives acted with respect to different issues, a separate decision should be issued for the issues addressed by each representative. Moreover, according to BVA Directive 8430, paragraphs 14(c)(1) and (10), if different issues have two or more AOJs, or are based on completely different law or facts, a separate decision should be issued for each issue. In summary, two other separate Board decisions are being rendered for the issues of entitlement to service connection for a gastrointestinal disorder and entitlement to payment or reimbursement of unauthorized medical expenses. The PTSD issue is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court has clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97 (2008). In the present case, the AOJ did not substantially comply with any of the development requested in the Board's earlier May 2012 remand. First, there is no indication in the paper or electronic claims folder that the AOJ undertook the appropriate development to attempt to corroborate any of the Veteran's alleged in-service stressors, as directed by the Board in the May 2012 remand. In addition, there is no indication in the paper or electronic claims folder that the AOJ scheduled the Veteran for a VA mental health examination to determine whether the Veteran has PTSD as the result of an in-service stressor, as directed by the Board in the May 2012 remand. Finally, there is no indication in the paper or electronic claims folder that the AOJ readjudicated the PTSD claim by way of a rating decision or SSOC, as directed by the Board in the May 2012 remand. The only indication of any development of the PTSD claim after the Board's remand was a November 2014 deferred rating decision. In any event, it does not appear that any development undertaken by the AOJ was fully completed. In fact, the Veteran's attorney in September 2015 and October 2015 letters (on VBMS) pointed out there was no indication the RO completed any of this development. In short, although it will result in additional delay in adjudicating the appeal, a remand is required to ensure substantial compliance with the Board's previous May 2012 remand for the PTSD issue on appeal. Second, the Board has also recharacterized the Veteran's PTSD issue on appeal to include other psychiatric disorders noted in the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In this regard, VA mental health treatment records dated from 1997 to 2005 also contain diagnoses of depression, mental disorder NOS, mood disorder, adjustment disorder, personality change, rule out (R/O) bipolar disorder, R/O psychosis NOS, R/O obsessive compulsive disorder, R/O anxiety NOS, and R/O mood disorder secondary to traumatic brain injury. Thus, the request for a VA mental health examination discussed above should also include a request for a medical opinion to determine whether the Veteran has an acquired psychiatric disorder (other than PTSD) that is related to his military service. Third, in an October 2007 VA mental health note, the Veteran stated that he was in the process of applying for Social Security Administration (SSA) disability benefits because he was no longer able to work. Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). VA is required to obtain relevant federal records that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(3) (West 2014); 38 C.F.R. § 3.159(c)(2) (2015). VA must make as many requests as necessary to obtain "relevant" SSA records to include accompanying medical records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Thus, a remand is warranted to obtain any SSA disability records, as these SSA disability records may be pertinent to the PTSD issue on appeal. Fourth, as the appeal is already being remanded for SSA records and Stegall compliance, the Board sees the Veteran's VA treatment records on file from the Loma Linda, California VA healthcare system date to November 2008, and from the Richmond, Virginia VA healthcare system date to January 2010. If the Veteran has since received additional relevant VA treatment, these records should be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request from the SSA all records associated with the Veteran's SSA disability claim (see October 2007 VA mental health note). In particular, request copies of the SSA disability determination and all medical records considered. If no SSA records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 2. The AOJ should obtain the following VA treatment records and associate them with the claims file: (A) VA treatment records from the Loma Linda, California VA healthcare system dated from November 2008 to the present. (B) VA treatment records from the Richmond, Virginia VA healthcare system dated from January 2010 to the present. All attempts to secure these records, and any response received, must be documented in the claims file. If no VA treatment records are available, a response to that effect is required and should be documented in the file. 3. After completion of the above development, the AOJ should substantially comply with the development requested by the Board in its earlier May 2012 remand. (There is no indication in the paper or electronic claims folder that the AOJ undertook the development instructed by the Board in its May 2012 remand). (A) Specifically, the AOJ should undertake the appropriate development to attempt to corroborate any of the Veteran's alleged in-service stressors, as directed by the Board in Instruction #1 of the May 2012 remand. (B) Then, the AOJ should schedule the Veteran for a VA mental health examination to determine whether the Veteran has PTSD as the result of an in-service stressor, as directed by the Board in Instruction #2 of the May 2012 remand. In addition to the above PTSD opinion request, the VA mental health examiner should identify any other psychiatric disorder the Veteran has (other than PTSD). For each psychiatric disorder identified other than PTSD, the VA examiner should state whether it is at least as likely as not that the psychiatric disorder manifested in service or is otherwise causally or etiologically related to events from the Veteran's military service. In this regard, VA mental health treatment records dated from 1997 to 2005 also contain diagnoses of depression, mental disorder NOS, mood disorder, adjustment disorder, personality change, rule out (R/O) bipolar disorder, R/O psychosis NOS, R/O obsessive compulsive disorder, R/O anxiety NOS, and R/O mood disorder secondary to traumatic brain injury. In undertaking the above development, the AOJ should refer to the specific instructions listed by the Board in its earlier May 2012 remand. 4. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled VA examination and to cooperate in the development of the PTSD claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issue on appeal of service connection for an acquired psychiatric disorder, to include PTSD. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his attorney an opportunity to respond. The Veteran 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). _________________________________________________ DAVID L. WIGHT 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).