Citation Nr: 1805648 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-40 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a respiratory disorder. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Todd Berk, Attorney WITNESSES AT HEARING ON APPEAL The Veteran, the Veteran's father, and [redacted] ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran had service in the Army from September 1975 to March 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2011, a Travel Board hearing was held before a Veterans Law Judge (VLJ) who subsequently retired. The transcript from that hearing is in the claims file. Following April 2014 and March 2016 Board remands for additional development, an additional hearing was held before the undersigned VLJ in October 2017. The transcript of this most recent hearing is associated with the claims file. The case has now returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is necessary with regards to the Veteran's service connection claims for a psychiatric disorder, a respiratory disorder, and hepatitis C. The Veteran underwent VA examination in September 2016 for his psychiatric disorder; and in April 2017 for hepatitis C. Additionally, a VA examiner provided a medical opinion concerning the Veteran's respiratory disorder in October 2016. The claims file also contains additional VA treatment records related to the Veteran's claim. The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). The Veteran has not submitted a waiver of AOJ consideration of this relevant evidence, and the AOJ has not issued a supplemental statement of the case (SSOC) which considers the new evidence. While the claims file contains waivers of AOJ review for Veteran-submitted evidence, this new evidence was not submitted by the Veteran. Therefore, the appeal must be remanded for the issuance of an SSOC. Additionally, at the October 2017 Board hearing, the Veteran stated that he was unable to obtain outstanding service treatment records relevant to the claims on appeal. Specifically, the Veteran indicated that he received in-service treatment for a respiratory condition at Fort Jackson, South Carolina; and for a psychiatric condition at Fort Dix, New Jersey. As any outstanding service treatment records may be relevant to his claims, an attempt must be made to obtain the records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims folder all VA medical records that have not yet been associated with the file. 2. The AOJ should undertake appropriate development to obtain complete service treatment records, to include any treatment sought at Fort Jackson, South Carolina and Fort Dix, New Jersey. As it pertains to records from Fort Dix, the AOJ should follow the adjudicative manual guidelines for obtaining mental health treatment records which may be stored separately from service treatment records. See M21-1, IV.ii.1.D.2.a (discussing that mental health treatment records separately maintained); mental health records and/or inpatient treatment (clinical) records from the service department are filed separately and generally not provided, absent a specific request. See M21-1MR, part III.subpart iii.2.A.1.a (distinguishing between service treatment records, mental health records, and inpatient treatment (clinical records); see also M21-1MR, part III.subpart iii.2.B.12.c (locating inpatient treatment (clinical) records) If necessary, contact the Veteran and his representative to identify any outstanding records of pertinent medical treatment of the Veteran's claimed disabilities. 3. Following the development directed above and any other necessary development, readjudicate the Veteran's claims. If the claims remain denied, issue a Supplemental Statement of the Case (SSOC) addressing the issues. The Veteran and his representative should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ T. MAINELLI 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).