Citation Nr: 1753216 Decision Date: 11/20/17 Archive Date: 12/01/17 DOCKET NO. 12-24 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a traumatic brain injury, for substitution as claimant and accrued benefits purposes. 2. Entitlement to service connection for depression, for substitution as claimant and accrued benefits purposes. 3. Entitlement to service connection for hearing loss, for substitution as claimant and accrued benefits purposes. 4. Entitlement to service connection for a nervous condition, for substitution as claimant and accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from November 1944 to August 1946. He died in April 2013. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the claims on appeal. The Veteran perfected an appeal of the March 2011 decision prior to his death. In a July 2013 memorandum, the RO determined that the appellant applied for and was a proper substitute claimant with respect to the Veteran's pending appeal. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1000(a) (2017). If a claimant dies while a claim for any benefit under law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. Hence, the appellant's application for substitution as claimant also served as an application for accrued benefits. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Based upon its review of the Veteran's claims file, the Board finds that there is a further duty to assist the appellant with her claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board notes that there are outstanding VA treatment records that have not been associated with the Veteran's claims file. The March 2011 rating decision, as well as the Statement of the Case issued in August 2012, indicates that the Veteran's outpatient records from the VA Medical Center (VAMC) in Birmingham, Florence division, dated from August 16, 2010 to February 25, 2011 were reviewed. However, currently the record only includes VA mental health treatment records dated from August 4, 2011 and November 10, 2011. 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). As the VA treatment records are potentially relevant to the Veteran's service connection claims, the case must be remanded for the RO to obtain and associate with the claims file any and all outstanding VA treatment records from the VAMC in Birmingham, Alabama. The Veteran claimed service connection for depression and nervous condition as a result of his military service during the World War II. He reported he was involved in a truck accident in Germany that resulted in the death of some soldiers who were riding the truck with him; the Veteran passed out and did not remember the details of what happened subsequent to the accident. He stated he had been "nervous" since that time. In a September 2010 written statement, the appellant indicated that she and the Veteran were married in December 1950, shortly after his separation from service. She stated the Veteran served during the Battle of the Bulge and he was involved in a truck accident in Munich, Germany after which he had been very nervous and had a lot of anxiety. Unfortunately, the Veteran's service treatment records are fire-related and not available in this case. However, the medical evidence of record shows that the Veteran had a generalized anxiety disorder associated with depression. Furthermore, in a November 2011 VA mental health note, the Veteran reported that he saw active combat in the Battle of the Bulge and that he had a long history of depression. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges its heightened duty to assist given that the Veteran's service treatment records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 36 (1991). The Veteran, during his lifetime, had never been afforded a VA examination in conjunction with his claims, and the Board finds that a VA medical opinion is necessary to adequately decide the merits of the claims for depression and nervous condition, based on the lay testimony of record. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding treatment records for the Veteran from the VA Medical Center in Birmingham, Alabama, and all associated outpatient clinics. The Board is particularly interested in obtaining the Veteran's records of outpatient treatments at the Birmingham VAMC, Florence Division dated from August 2010 to February 2011. All actions to obtain the requested records should be documented in the claims file. If any records cannot be located or no such records exist, the Veteran should be notified, and a memorandum of unavailability should be placed in the claims file. 2. Thereafter, forward the Veteran's claims file to a VA examiner with appropriate expertise, to determine the etiology of the Veteran's psychiatric disorder, claimed as depression or nervous condition. The Veteran's claims file, including the Veteran's statements, must be made available to and reviewed by the examiner. The examiner should provide an opinion regarding as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran had any psychiatric disorder during his lifetime that was related to service, including exposure to active combat during the World War II and the claimed truck accident while serving in Germany. All opinions must be supported by a clear rationale. If there are insufficient facts or data within the claims file, the examiner must identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 3. After completing the above actions, the RO must readjudicate the appellant's claims. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. §§ 5109B, 7112 (2012). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).