Citation Nr: 0002325 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-50 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disorder to include anxiety and schizoid personality disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Andrew E. Betourney, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which determined that new and material evidence sufficient to reopen the veteran's claim for service connection for a nervous condition had not been received. The veteran filed a timely appeal to this adverse determination. When this matter was previously before the Board in November 1998 it was remanded to the RO for further development. The Board observes that in its November 1998 REMAND, the Board determined that the December 1995 RO denial on appeal encompassed a new service connection claim for a psychiatric disorder, since that decision relied upon a diagnosis of a new psychiatric disorder which had not been diagnosed at the time of the previous final RO rating decision in April 1981. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The RO was requested, on remand, to adjudicate the veteran's claim for a psychiatric disorder to include anxiety and schizoid personality disorder on the merits, provide the veteran with a Statement of the Case with the applicable laws and regulations, and afford the veteran the opportunity to respond before returning the case to the Board. After compliance with the Board remand, the case was returned to the Board for review on the issue as outlined above. REMAND In reviewing the veteran's claims file, the Board observes that during the course of his July 1999 hearing before the undersigned Board Member, the veteran testified that he had received continuous treatment for psychiatric symptomatology at the Marion VAMC since approximately 1979. He stated that this treatment included individual therapy sessions with a psychologist approximately every two months, and individual therapy sessions with a psychiatrist approximately every six months. The Board notes that during the pendency of this appeal, the RO has on two occasions requested records from that facility. However, one of the requests only sought to obtain medical records dated from September 1995, and the other request was for records dated from February 1996. The Board notes further, that the last request for current treatment records was made several years ago, in March 1998. Although the veteran apparently completed a medical records release form for VA records from the Marion VAMC in July 1998, it is unclear whether such records were requested at that time. In any case, no outpatient treatment records from the Marion VAMC subsequent to that date are of record. In this regard, the Board notes that, if such VA medical evidence does exist, the Board must obtain these records prior to a final adjudication of the veteran's appeal. See 38 U.S.C.A. § 5107 (West 1991 & Supp. 1996); see also Bell v. Derwinski, 2 Vet. App. 611, 612-613 (1992) (the VA has constructive, if not actual, knowledge of records generated by the VA); Murincsak v. Derwinski, 2 Vet. App. 363, 372-373 (1992) (when the VA has knowledge of relevant records, the Board must obtain these records before proceeding with the appeal). Therefore, a REMAND is required in this case to allow the RO to request and review these VA records. As a final note, the Board observes that the veteran indicated at his personal hearing in July 1999, that his first post-service psychiatric treatment was at the Marion VAMC around 1979. However, the Board notes that in an earlier application for benefits dated in February 1981, the veteran indicated that he had been receiving treatment for a "Nervous Cond." from Dr. John Pope at the Benton Medical Clinic. The veteran is informed that he should obtain and submit such records if he determines that such records would complete his current application for benefits. Based on the foregoing, and in order to give the veteran every consideration with respect to the present appeal and to accord the veteran due process of law, the Board finds that further development with respect to the issue on appeal in this case is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the VA Medical Center in Marion, Illinois, and request copies of any medical records, not already of record, regarding treatment provided to the veteran for a mental disorder from 1979 to the present. Any such records obtained by the RO should be associated with the claims file. If the search for such records is unsuccessful, documentation to that effect should be placed in the claims file. 2. The RO should then readjudicate the issue of service connection for a psychiatric disorder, to include anxiety and schizoid personality disorder, after undertaking any indicated additional action. If any determination remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and be afforded the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development and adjudication, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. S. L. KENNEDY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).