Citation Nr: 0000295 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 94-36 151A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post traumatic stress disorder (PTSD). 2. Entitlement to service connection for a kidney disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefits sought on appeal. Subsequently, the veteran's case was transferred to the ROs in Nashville, Tennessee; Louisville Kentucky; and Indianapolis, Indiana, in November 1996, February, 1998 and June 1999, respectively. The veteran has an unverified period of service from August 10, 1979 to February 2, 1981 in the U.S. Army Reserves, and a verified period of active service from February 3, 1981 to February 23, 1981 in the U.S. Navy. REMAND Upon a preliminary review of the evidence, the Board notes that various November 1994 VA forms 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) and an October 1994 statement from the veteran show he was treated at the Bryan Dorn VA Hospital in Columbia, South Carolina, from September 1993 to November 1994. However, although a September 1995 Supplemental Statement of Case mentions the claims folder contained the veteran's treatment records from the Columbia VAMC dated from October 1994 to December 1994, the Board finds the present record is devoid of the veteran's treatment records from this VA facility for the period including from September 1993 to November 1994. In this regard, in Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive knowledge of documents generated by VA medical facilities even if the said records were not physically part of the claims file. In a precedent opinion, the VA General Counsel held that when a decision is entered on or after July 21, 1992, a failure to consider records which were in VA's possession at the time of that decision, although not actually in the record before the RO, may constitute clear and unmistakable error, if such failure affected the outcome of the claim. The date July 21, 1992, was chosen as that was the date the Court announced the constructive knowledge rule in Bell. See VAOPGCPREC 12-95. Therefore, given that the present record is devoid of such records of or any evidence noting that the VA facility notified the RO that such records were unavailable, the RO should attempt to obtain the veteran's treatment records from the Bryan Dorn VA Hospital in Columbia, South Carolina, for the period including from September 1993 to November 1994. If these records cannot be obtained, the record on appeal must contain documentation indicating that such treatment records are unavailable. In addition, the Board notes that additional evidence may exist which has not been presented or secured. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Specifically, the Board notes that a June 1999 Consent for Disclosure of Information from the State of Indiana shows the veteran was treated at and/or is receiving benefits from the State of Indiana, Office of Vocational Rehabilitation. Also, a November 1994 VA form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) notes the veteran was treated at a facility from the State Department of Mental Health in Columbia, South Carolina, from October 1993 to November 1994. Furthermore, a June 1993 VA form 21-4138 (Statement in Support of Claim) notes the veteran was treated at the Christian Hospital N.E. and the Malcolm Bliss Mental Hospital in St. Louis, Missouri from 1988 to 1993. However, as the record is devoid of the mentioned records, the RO should suggest to the veteran to submit such records as they may assist him in well grounding his claims for service connection. See 38 U.S.C.A. § 5103 (West 1991); see generally id. Based on the foregoing, and in order to fully and fairly adjudicate the veteran's claims in this case, the appeal is REMANDED to the RO for the following actions: 1. The RO should attempt to obtain the veteran's treatment records from the Bryan Dorn VA Hospital in Columbia, South Carolina, for the period including from September 1993 to November 1994. If the search for these records has negative results, the claims file must be properly documented with information obtained from the VA facility indicating that these records are not available. 2. The RO should notify the veteran that additional evidence may exist which has not been presented or secured, including any treatment records or additional records from the State of Indiana, Office of Vocational Rehabilitation; the South Carolina Department of Mental Health; and the Christian Hospital N.E. and the Malcolm Bliss Mental Hospital in St. Louis, Missouri. The RO should advise the veteran to submit such records as they may assist him in well grounding his claims for service connection. 3. The RO should then adjudicate the issues of entitlement to service connection for a psychiatric disorder, to include PTSD, and a kidney disorder. If, after readjudication of the issues on appeal, the benefits sought remain denied, the veteran should be furnished a supplemental statement of the case which addresses the additional evidence presented by the veteran and any other evidence which is obtained. Subsequent to the issuance of the supplemental statement of the case, the veteran should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). However, no action is required of the veteran until he is notified. WARREN W. RICE, JR. 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).