Citation Nr: 1759955 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 12-34 840 ) 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 an acquired psychiatric disorder, to include depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and E.G., Interpreter ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to February 1974, with additional service in the Army National Guard of Puerto Rico with periods of ACDUTRA and INACDUTRA. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In April 2014, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the record. VA regulations require that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In an August 2016 letter, the Board advised the Veteran that the VLJ from the April 2014 hearing was not currently available to participate in the appeal and offered him the opportunity for a hearing before a new VLJ. The Veteran submitted a signed statement in September 2016, indicating that he did not wish to appear for a new hearing, and that the Board should consider the case on the evidence of record. In a September 2015 decision, the Board remanded this case for additional development. In a March 2017 decision, the Board denied the Veteran's claim of entitlement to service connection for acquired psychiatric disorder, to include depressive disorder. The Veteran appealed the Board's March 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to an October 2017 Joint Motion for Remand (JMR), the Court vacated the Board's March 2017 denial and remanded the issue back to the Board for additional consideration consistent with the terms of the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. The October 2017 JMR noted the Board erred in failing to secure all of the Veteran's Social Security Administration (SSA) Records. An attempt should be made to obtain theses records on remand. In November 2017, the Veteran's representative stated that the Veteran Army National Guard of Puerto Rico service personal records provide evidence to the Veteran's claim. Therefore, the RO should attempt to obtain the Veteran's service personal records. After the Veteran's complete SSA and service personal records have been secured, an addendum medical opinion should be obtained to determine the etiology of the Veteran's acquired psychiatric disorder. The Board notes that the October 2017 JMR also required that the Board to obtain an English translation for an October 5, 2000 psychological report that accompanied the incomplete SSA records. However, a May 2015 letter from the Academy of Languages to the Board provided a translation of the October 2000 psychological report. Therefore, no further development is required regarding translation of this report. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record all records from the Social Security Administration (SSA), to include any claims for disability benefits for the psychiatric disorder on appeal, and treatment records or evaluations upon which SSA based its decision. 2. The AOJ should secure for association the Veteran's service personal records including his time in the Army National Guard of Puerto Rico. 3. The AOJ should obtain any updated VA treatment records concerning the Veteran's psychiatric disorder on appeal. 4. After completing the above directives, the AOJ should return the claims file to the April 2016 VA examiner for an addendum opinion regarding the nature and likely etiology of the Veteran's claimed psychiatric disorder. If the examiner is not available, a different examiner may render the requested opinion. The Veteran's record, to include this remand, must be made available to the examiner for review. Upon review of pertinent medical history, the examiner should provide a response to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's current psychiatric disorder is related to service? The examiner should provide a detailed rationale for the opinion and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. 5. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein 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).