Citation Nr: 0001540 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 94-43 913 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for an innocently acquired psychiatric disorder. 2. Entitlement to secondary service connection for hypertension. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty in the Navy from February 1964 to February 1965 and in the Army from February 1974 to March 1975. This matter originally came to the Board of Veterans' Appeals (Board) on appeal of an October 1993 rating decision of the RO. In December 1996, the Board remanded the case for additional development. In November 1998, the Board denied the veteran's claims, and he appealed to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the "Court"). In a May 1999 order, the Court granted a Joint Motion for Remand, vacating the Board's decision and remanding for additional proceedings. (The issue of service connection for hypertension is addressed in the Remand section of this document.) FINDING OF FACT The veteran's claim of service connection for an innocently acquired psychiatric disorder is plausible. CONCLUSION OF LAW The claim of service connection for an innocently acquired psychiatric disorder is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The Court has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If the disorder is a chronic disease, service connection may be granted if manifest to a degree of 10 percent within the presumptive period following service; the presumptive period for psychoses is one year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The veteran's private physiatrist, Arthur E. Silverman, M.D., submitted statements in which he expressed that he strongly believed that the veteran's disability was much greater than it would have been had he never served in the U.S. Army or Navy. Thus, the Board finds the claim of service connection for an innocently acquired psychiatric disorder to be well grounded. 38 U.S.C.A. § 5107. ORDER As the claim of service connection for an innocently acquired psychiatric disorder is well grounded, the appeal is allowed to this extent, subject to further action as discussed hereinbelow. REMAND The veteran's representative has requested that the Board remand the case for additional development. Specifically, the representative noted that, since the Board's November 1998 decision, the veteran had received ongoing mental health treatment from the VA Medical Center at White River Junction and the VA Outpatient Clinic in Albany, New York. It was determined in the Joint Motion for Remand that the Board's discussion of the presumption of aggravation was not adequate, as the VHA psychiatrist failed to address whether the psychiatric disorder that preexisted the second period of service was aggravated by such service. As the veteran's claim of service connection for hypertension as secondary to psychiatric disability is inextricably intertwined with the issue of service connection for psychiatric disability, it must be remanded as well. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should take appropriate action once again to contact the veteran in order to request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for a psychiatric disorder before, during or since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. Specifically, the RO should obtain records of mental health treatment from the VA Medical Center at White River Junction and the VA Outpatient Clinic in Albany, New York. 2. The RO should take appropriate steps to contact Dr. Silverman and request that he provide all records of the veteran's treatment as well as all records on which he based his opinion that the veteran's psychiatric disability was aggravated by his military service. 3. After undertaking any additional development deemed appropriate, including any additional VA medical examinations, the RO should review the veteran's claims. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals