Citation Nr: A20008684 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 190605-56568 DATE: May 15, 2020 REMANDED Entitlement to service connection for a psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to March 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the RO denied service connection for a psychiatric disability in a June 2015 rating decision. In November 2015, the Veteran requested reconsideration of his claim, and in a February 2016 rating decision the RO confirmed and continued the denial of service connection for a psychiatric disability. The Veteran filed a notice of disagreement February 2017. On February 19, 2019, the new modernized decision review system created by the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), went into effect. Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). This law creates a new framework for appellants dissatisfied with VA’s decision on their claim to seek review. In May 2019, the RO issued a statement of the case denying service connection for a psychiatric disability. In response, the Veteran opted-in to the modernized review system by timely submitting an appropriate form electing a review option under the AMA, specifically review by the Board. 38 C.F.R. §§ 3.2400(b), (c)(2), 3.2500(a)(1)(ii), 19.2. As such, the appeal will be decided pursuant to the modernized review system. In the appeal to the Board, the Veteran requested to submit additional evidence. 38 C.F.R. § 20.202(b)(3). The 90-day period for the submission of additional evidence has since passed. 38 C.F.R. § 20.303. As the Veteran elected to submit additional evidence, the Board will consider the evidence of record up to the date of the statement of the case, as well as any evidence received within the 90-day period following submission of the appeal to the Board. 38 C.F.R. §§ 20.300, 20.303. 1. Entitlement to service connection for a psychiatric disability. The Veteran asserts that his psychiatric disability is causally related to a fatal motor vehicle accident he was involved in during service. Service personnel records show that the Veteran was court martialed following an April 1980 accident. The Veteran was found not guilty of unlawfully killing by culpable negligence a fellow service member but was found guilty of driving while intoxicated. The Veteran was also found not guilty of the portion of the drunk driving charge which noted that he caused his vehicle to kill a fellow service member. Thus, at present the central inquiry is whether the Veteran’s reported disease or injury, the motor vehicle accident, was incurred or aggravated in the line of duty or was the result of willful misconduct. 38 U.S.C. §§ 105(a), 1131; 38 C.F.R. §§ 3.1(m), (n), 3.301. However, in attempting to evaluate whether there was willful misconduct, the Board notes that no specific information concerning the accident itself is contained in the Veteran’s personnel records, nor is any information contained in the treatment records currently associated with the file. As such, the precise circumstances surrounding the Veteran’s alcohol use, the motor vehicle accident, and the death of his fellow service member are currently unclear. In October 2015, the Veteran submitted a letter from a medical provider. The letter stated that, based on the Veteran’s account of the accident as provided during counselling sessions over the prior year, the accident was not the result of the Veteran’s willful misconduct. A review of the record reflects that private psychiatric treatment records have been associated with the file, but only dating up to approximately September 2014. Based on the October 2015 opinion, approximately one year of private treatment records were outstanding, and further these records contained specific information regarding the nature of the in-service motor vehicle accident. In light of the foregoing, the Board finds that a pre-decisional duty to assist error occurred, as no efforts were made to obtain the outstanding, relevant private treatment records. As such, a remand is necessary to remedy this error. 38 C.F.R. § 3.159(1). The matter is REMANDED for the following action: Contact the Veteran and request that he submit or authorize for release all private treatment records relevant to his psychiatric disability, including from the Rappahannock Area Community Services Board. For all records authorized for release, if the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.