Citation Nr: 0730118 Decision Date: 09/25/07 Archive Date: 10/01/07 DOCKET NO. 05-18 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for heart disease, including as secondary to PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from March 1988 through March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran is seeking service connection for PTSD and heart disease. These claims are not ready for appellate review as further development is necessary. The veteran's claim folder is without either service medical records or service personnel records at this time. These records are essential to a determination of what disabilities may have been incurred in service, as well as to verify the stressors that may have caused any current PTSD. VA has a duty to assist the veteran in obtaining records such as these, which are in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2) (2007). VA will make as many requests as are necessary to obtain these relevant records and will not stop searching until it is determined that further efforts would be futile, or until the department or agency notified VA that the records do not exist. Id. In this case, a January 2004 email, a copy of which is contained in the claims folder, shows a request stating, "Please provide service medical records, PTSD information and herbicides for the below listed individual. SMRs are not at this location. BINQ screen indicates that SMRs were in transit as of September 30, 2003." A January 2004 response on the same page shows "SMR is a no record at the RMC." The record shows that the RO requested the veteran's service records from the Records Maintenance Center (RMC) in St. Louis, Missouri, in September 2003. There is no formal response from the RMC to the September 2003 request apparent in the record. In April 2004, VA wrote the veteran requesting information regarding his Marine unit and unit's address so that the RO could look further. There is no response from the veteran apparent in the claims folder. In May 2004, the RO again notified the veteran of the failed attempt to obtain records from the RMC. The Board again notes, that the negative response to the September 2003 request is not found in the claims folder. There is, however, a May 2004 "Formal Finding of Unavailability of Service Records," generated at the RO, which notes the attempts summarized above. At the veteran's August 2007 hearing, he clarified that he served with the Second Marines 3-2 Kilo Company out of Camp Lejeune, North Carolina. See hearing transcript at page 11. The RO should, under 38 C.F.R. § 3.159(c)(2), make as many attempts as possible to obtain service records from the veteran's unit, as well as attempt to obtain records from the National Personnel Records Center. Only when all avenues for obtaining service records have been fully investigated can VA satisfy its duty to assist. Relevant records of the Social Security Administration are also records under the control of a Federal Department or agency. 38 C.F.R. § 3.159(c)(2) (2007). In this case, a June 2007 letter to the veteran regarding the decision on his claim for pension indicates that he receives $12,276.00 annually in Social Security income. VA must make as many attempts as are necessary to obtain relevant Social Security records and associate them with the claims folder. 38 C.F.R. § 3.159(c)(2) (2007). Also under Federal control are treatment records from VA medical centers (VAMC). Id. At his hearing, the veteran reported that he began treatment at the VAMC in Murfreesboro in 2002 and at the Chattanooga VAMC in 2007. See hearing transcript at pages 3-4. At present, the claims folder contains only records from the Murfreesboro VAMC dating from June 2004 through April 2005. All relevant records from any VA treatment facility must be obtained and associated with the claims folder before VA's duty to assist the veteran can be satisfied under 38 C.F.R. § 3.159(c)(2). VA also has a duty to assist the veteran in obtaining relevant private treatment records. See 38 C.F.R. § 3.159(c)(1) (2007). In this case, the veteran has noted treatment from a private psychiatrist, a private family physician, and a cardiologist. See hearing transcript at pages 13-14. The claims folder contains an undated summary from the psychiatrist, Dr. Svoren. The doctor noted treatment beginning in March 2003; however, no treatment records are contained in the claims folder. Only a brief summary of treatment is available. VA must attempt to obtain all relevant records with regard to any private psychiatric treatment of the veteran. Also, the veteran refers to treatment regarding his heart condition with a family doctor, Dr. Bolton. VA attempted to obtain Dr. Bolton's records in January 2004, but was met with a negative reply. However, the veteran again referred to treatment with Dr. Bolton at his August 2007 hearing. Id. at page 14. VA should obtain additional information regarding Dr. Bolton's address from the veteran so that these records can be associated with the claims folder. And, since the August 2007 hearing, an authorization to obtain records was received for access to the records of Dr. Ezad Ahmad. This is presumably the cardiologist referred to at the Board hearing. Id. at page 21. VA should assist the veteran in obtaining records from all relevant private doctors. 38 C.F.R. § 3.159(c)(2) (2007). VA also has a duty to notify the veteran of the relevant evidence needed to establish his claim. At the August 2007 hearing, the veteran clarified his contention that his heart disease is due to his PTSD. See hearing transcript at page 3. The September 2003 notice to the veteran informed him of the evidence necessary to establish service connection on a direct basis, but to date no notice of the evidence necessary for secondary service connection has been provided the veteran. Also, during the pendency of this appeal the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which placed two additional duties upon the VA. Under Dingess, VA must also provide proper notice of the evidence required to establish the degrees of disability and the effective date of an award. The notice provided to the veteran in this case is not in conformity with the Court's Dingess decision. As such, this matter must be remanded for proper notice under 38 C.F.R. § 3.159(b)(1), including corrective notice under Dingess and notice of the evidence necessary to establish service connection on a secondary basis. Accordingly, the case is REMANDED for the following action: 1. Ensure that VA has met its duty to notify the veteran under 38 C.F.R. § 3.159(b) (2007), including issuing corrective notice that is compliant with Dingess v. Nicholson, 19 Vet. App. 473 (2006), and that notifies the veteran of the evidence necessary to establish service connection on a secondary basis under 38 C.F.R. § 3.310(a) (2007). 2. Ensure that VA has met its duty to assist the veteran under 38 C.F.R. § 3.159(c)(1) (2007), including obtaining fully executed authorizations to obtain records from all relevant private physicians identified by the veteran, including, but not limited, Doctors Svoren, Bolton, and Ahmad. Request these records and associate all non-duplicative records, as well as any negative responses, with the claims folder. 3. Ensure that VA has met its duty to assist the veteran under 38 C.F.R. § 3.159(c)(2) (2007), including, but not limited to, investigating all possible sources for the veteran's service medical records and service personnel records (check with the Headquarters U.S. Marine Corps, Personnel Management Support Branch as well as the VA Records management Center in this instance), and obtaining all relevant records from the Social Security Administration and VA medical centers at Murfreesboro and Chattanooga. 4. Readjudicate the veteran's claims. If the benefits sought on appeal remain denied, the veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).