Citation Nr: 0001940 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 94-40 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL The veteran's mother and his brother ATTORNEY FOR THE BOARD T. Reichelderfer, Counsel INTRODUCTION The veteran served on active duty from April 1966 to July 1967. This appeal arises from a rating decision of June 1993 from the New Orleans, Louisiana, Regional Office (RO), which found that new and material evidence had not been received to reopen the claim for service connection for schizophrenia. The veteran perfected an appeal to that decision and the claim was then reopened in an undated hearing officer's decision. The Board of Veterans' Appeals (Board) remanded the case to the RO in October 1996 for further evidentiary development and adjudication. The case was returned to the Board and in a June 1997 decision, the veteran's claim was denied. The veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 1999 Order from the Court, the Board's decision was vacated and the case was remanded to the Board for further action in accordance with the Court's Order. [citation redacted]. The case is again before the Board for consideration. The record before the Board indicates that in May 1998, the veteran granted his brother a general power of attorney to manage his affairs. The veteran's brother has been assisting the veteran with his claim. REMAND The Court's Order remanded this case to the Board to obtain a medical advisory opinion as to the time of onset and etiology of the veteran's mental disorder. However, upon further review of the claims file, the Board finds that this case should be returned to the RO for additional evidentiary development prior to requesting the medical opinion. This further evidentiary development will ensure that the medical advisory opinion is a fully informed one and that the Board has all available evidence before it so that an equitable disposition of the veteran's claim can be rendered. The discharge examination indicates that veteran had depression and excessive worry due to service adjustment. This record raises the possibility that the veteran may have received a mental health evaluation during service. When the RO conducted the initial development of the veteran's claim in 1967, only the service medical records were requested. However, mental hygiene records are not associated with the service medical records and it is unclear as to whether or not they were specifically requested by the RO. Therefore, to ensure that the Department of Veterans Affairs (VA) has all possible relevant records of any treatment during service, the RO should make further attempts to locate any service mental hygiene records related to the veteran. See M21-1, Part III, Para. 4.17f(2). The veteran's representative has asserted that the veteran was admitted to a VA hospital for treatment of schizophrenia in November 1967. The basis for this assertion is not shown in the claims file since the file does not contain any records related to a VA psychiatric hospitalization in 1967. The veteran filed his initial claim for benefits in November 1967 and listed his address as New Orleans. In order to make sure that the record before the Board is complete, the RO should try to obtain the records of any psychiatric hospitalization in 1967 at the VA Medical Center at New Orleans, Louisiana. The claims file contains two statements from [redacted] who was the veteran's supervisor during service. One of these statements indicates that the veteran's behavior during service was consistent with the onset of schizophrenia. A July 1996 statement from the veteran's brother indicates that Mr. [redacted] was a practicing mental health professional in 1996. However, with the exception of the assertion by the veteran's brother concerning Mr. [redacted], the claims file does not show what qualifications Mr. [redacted] may have to render a medical opinion. In order to accord Mr. [redacted]'s statements proper weight and probative value, the RO should make arrangements in order to obtain verification of Mr. [redacted]'s qualifications as a mental health professional. The Court has held that the duty to assist veterans in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1999), as set forth in Littke v. Derwinski, 1 Vet.App. 90 (1990), requires that the VA accomplish additional development of the evidence if the record currently before it is inadequate. Accordingly, the case is REMANDED for the following: 1. The RO should initiate a records search inquiry to be undertaken by the National Personnel Records Center (NPRC) and/or the appropriate service department in order to obtain copies of any and all medical records relating to any treatment afforded to the veteran at the Air Force Hospital at Mather Air Force Base, California, from January 1967 to July 1967. All attempts to secure any available records should be documented and all records received in response to this inquiry should be associated with the claims folder. 2. The RO should contact the veteran and 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 since service for psychiatric symptoms. Any additional VA medical records identified by the veteran should be obtained pursuant to established procedure. The RO should specifically request the VA Medical Center in New Orleans, Louisiana, to provide legible copies of records related to any psychiatric hospitalization pertaining to the veteran from July 1967 to December 1967. If any records have been retired to a records repository, action should be taken to retrieve such records. If the Medical Center finds that that there are no pertinent hospitalization records, this should be so stated and the statement associated with the claims file. 3. With respect to non-VA health care providers identified by the veteran, the RO should request his authorization to release any indicated private medical records to the VA. Upon receipt of his signed authorization, the RO should attempt to obtain copies of treatment records identified by the veteran. All treatment records obtained as a result of this inquiry should be associated with the claims folder. If the RO is unable to obtain the records identified by the veteran, he should be notified of the negative results and should be afforded an opportunity to get the records himself. 4. The RO should ask the veteran to provide the address of [redacted] and any other information that would assist in identifying Mr. [redacted]'s education and/or any other experience that would qualify him as a mental health professional capable of providing competent medical opinions. 5. Once the above-requested records have been obtained and associated with the claims folder, the RO should refer the entire claims folder to a VA psychiatrist who should review the entire medical history of record, and based on that review should specifically express medical opinions on the following questions: (1) what is the correct diagnosis or diagnoses of any existing psychiatric disorder; (2) if the veteran is currently suffering from a psychosis, the psychiatrist should indicate whether there is evidence or medical findings establishing a probability that the psychosis was present in service or within the first year after the veteran's final separation from service. In this regard, the psychiatrist should review the service records and indicate whether in light of all the medical evidence of record, the behavior exhibited by the veteran in service could be medically and reasonably regarded as the early manifestations of a psychotic disorder. (3) If the veteran's psychiatric disorder is found to be of post service incurrence, the psychiatrist should indicate the approximate date of onset based on the medical documentation on file. (4) If the veteran is found to have had a personality and/or behavior disorder in service, the psychiatrist should indicate based on the medical records whether it can be medically concluded that the condition became worse or was in any way aggravated by service. The physician must provide a comprehensive report containing complete rationale for all the opinions expressed. If the physician feels that an examination is deemed necessary in order to provide the requested opinions, then an examination should be promptly scheduled. The claims folder and a copy of this remand are to be made available to the examiner prior to the examination. 6. Thereafter, the RO should review the claims folder and ensure that the aforementioned report is complete and in compliance with the above directives. If the report is deficient in any manner, it must be returned to the psychiatrist for correction. 38 C.F.R. § 4.2 (1999) and Stegall v. West, 11 Vet.App. 268 (1998) 7. Subsequently, the RO should readjudicate the claim for service connection for schizophrenia with consideration given to all of the evidence of record, including any additional medical evidence obtained pursuant to this remand. In adjudicating the veteran's claim, the RO should consider carefully and with heighten mindfulness the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). If the evidence is not in equipoise, the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). 8. The veteran is hereby informed that he may furnish additional evidence and/or argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109, 112 (1995); and Kutscherousky v. West, 12 Vet.App. 419 (1999). He is further advised that he should assist the RO in the development of his claim, and that failure to cooperate or to report for any scheduled examination without good cause may result in an adverse decision. See 38 C.F.R. § 3.655 (1999) and Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). In this regard, the RO must document any failure of the veteran to cooperate or to report for any scheduled examination. If upon completion of the above actions the claim remains denied, the veteran and his representative should be furnished a supplemental statement of the case which summarizes all pertinent evidence, fully cites the applicable legal provisions and reflects clear explanation of the decision reached. The veteran and his representative should then be afforded a reasonable amount of time within which to respond thereto. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. 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. JOAQUIN AGUAYO-PERELES 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).