BVA9505575 DOCKET NO. 92-17 864 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from February 1975 to March 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1991 determination from the Wilmington, Delaware, Regional Office (RO) of the Department of Veterans Affairs (VA). In that determination letter the RO denied the veteran's claim of entitlement to service connection for a nervous disorder on the grounds that it had been previously denied by the RO and the decision had become final. In an April 1992 rating decision the RO determined that the veteran submitted new and material evidence to reopen his claim, but when such evidence was considered with the evidence of record, the RO concluded that service connection for a nervous disorder was not warranted. A hearing was held in December 1992 before Jan Donsbach, who is the member of the Board rendering this decision and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The case was remanded by the Board for further development in June 1993. REMAND The veteran submitted additional medical evidence consisting of a January 1976 private physician's statement regarding the veteran's psychiatric condition at that time. The evidence was submitted after the most recent supplemental statement of the case and in association with the VA Form 1-646 all of which were filed at the RO. Unfortunately, the RO did not provide the veteran a supplemental statement of the case with respect to this evidence. A statement waiving his right to have the evidence reviewed by the RO did not accompany the evidence submitted directly to the Board. This evidence is extremely important in this case because it relates to the state of the veteran's condition at the time he was on active duty. Under 38 C.F.R. § 19.37(a) (1994), any pertinent evidence which is submitted by the appellant or representative after the last supplemental statement of the case and before transfer of the records to the Board must be referred to the appropriate RO activity for preparation of a supplemental statement of the case. In the development accomplished pursuant to the June 1993 remand of the Board a copy of a hospital summary from Rockford Center from May 15, to June 17, 1974 was made part of the record. This record is extremely important in this case since it discloses a diagnosis of adjustment reaction of adolescence at a time prior to the veteran's entry onto active duty on February 6, 1975. In the June 1993 remand the Board asked that the examining psychiatrist express an opinion as to whether the symptoms reported in service were indicative of an acquired psychiatric disorder and, if the examiner concluded that the veteran suffered from an acquired psychiatric disorder prior to service, the examiner should express an opinion as to whether the disorder became worse. Despite the development of medical records in this case especially evidence of preservice treatment, the examining psychiatrist omitted to provide any medical opinion whatsoever in the February 1994 examination report. The RO incorrectly accepted this examination report as adequate for rating purposes. Unfortunately the key questions in this case remain unresolved and necessitate an additional remand with resulting delay. Had the RO insured that the examination was properly conducted and reported and provided the veteran another supplemental statement of the case with respect to the new evidence of record, the Board could now proceed to a final appellate decision. The United States Court of Veterans Appeals (Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining evidence from any source, and obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes obtaining available evidence to support the claim. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In view of the foregoing, the Board finds further development is in order to assist the veteran in the development of his claim. Therefore, the case is REMANDED to the RO for the following action: 1. The veteran should be requested to furnish the names of all health care providers who have treated him for the claimed disability since February 1994. After having obtained the appropriate releases, the RO should obtain copies of any other private medical records not already on file. The RO should also obtain copies of any VA outpatient and hospital records, not already on file, concerning treatment of this veteran. If any records are not available, that fact should be annotated in the claims folder. 2. Subsequently, the RO should provide the claims folder to the VA physician who conducted the February 1994 psychiatric examination. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to completion of the report. Special attention is directed to the 1974 summary from the Rockford Center, the January 1976 letter from V. Terrell Davis, M.D., and the service medical records. He or she must express an opinion as to whether the veteran's adjustment reaction of adolescence noted before and in service was a correct assessment of the veteran's psychiatric manifestations or whether these symptoms were the early manifestations of any current manic disorder. The examiner must also express an opinion as to whether the veteran's current psychiatric disorder in anyway pre-existed service, and if so, determine if there was an advancement of the pathology during service beyond its normal expected course. If it is determined that the current psychiatric disorder did not exist before service, the examiner must state when the condition had its onset. If E. N. Cuba, M.D., is not available or this examiner is of the opinion that another psychiatric examination would be helpful in providing a complete medical opinion, an additional examination should be conducted. As with the examination order set forth in the June 1993 remand, any indicated tests and studies should be conducted and the results should be reviewed prior to completion of the examination report. The report of examination should contain a detailed account of all manifestations of psychiatric pathology found to be present. The examiner must provide complete rationale for all conclusions reached. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 4. After the foregoing, the RO should again formally adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder. Following completion of these actions and, if the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).