Citation Nr: 0005210 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-20 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for a psychosis, to include schizophrenia. 2. Service connection for major depression/dysthymia. 3. Service connection for alcohol/polysubstance abuse. 4. Service connection for personality disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from December 1988 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May and November 1997 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In the May 1997 rating action, the RO denied the veteran's petition to reopen a claim for service connection for schizophrenia. In the November 1997 rating decision, the RO denied the veteran's claim for service connection for an acquired psychiatric disorder, to include bipolar disorder and paranoid schizophrenia. The veteran timely appealed these determinations to the Board. Although the veteran's varied psychiatric diagnoses have been claimed, and adjudicated, as a single issue ("acquired psychiatric disorder"), to avoid any confusion with respect to the specific conditions reflected by the record and considered, the Board finds that the issues on appeal are best characterized as on the cover page of this decision. REMAND Medical evidence associated with the claims file in connection with the current claims reflect diagnoses of a psychosis, apparently variously diagnosed as bipolar disorder with psychotic features and paranoid schizophrenia, depression/dysthymia, alcohol and polysubstance dependence, and personality disorders. In a May 1997 statement, which was filed at the RO that same month, the veteran reported that there outstanding medical records from the "VAMC T.P.," which would reflect his treatment at that facility "earlier in the 1990s." He maintained that, if obtained, these records would support his claims. In that same statement, the veteran also indicated that he would try to obtain pertinent records showing his treatment for psychiatric problems in Washington State, presumably dated during that same time period, which would also support his claim. This is particularly significant in this case because regulations provide that, for certain chronic diseases, such as a psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. However, it is unclear whether all VA records since the veteran's discharge from service have been associated with the record. More recent medical records should also be associated with the claims file. The claims folder reveals that the veteran has been receiving regular treatment for his psychiatric disabilities at the Bedford, Massachusetts VAMC, and that he was hospitalized on two occasions between December 1994 and March 1995 at the VAMC in Boston, Massachusetts. However, treatment records from the Bedford, Massachusetts VAMC, dated subsequent to January 1997, and hospitalization records from the Boston, Massachusetts VAMC, dated subsequent to March 1995, have also not been associated with the claims folder. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998; Bell v. Derwinski, 2 Vet. App. 611, 613 (1992)., Hence, all outstanding VA (and any other indicated) treatment records should be obtained and associated with the claims file. In addition, although the veteran apparently is receiving disability benefits from the Social Security Administration (SSA), it does not appear that VA has attempted to obtain and associate these records with the claims folder. The RO must obtain these treatment records because they might contain diagnostic studies and other conclusions that might be determinative in the disposition of these claims. The Board would also emphasize that, if the evidence described above does not support the veteran's claim to reopen and his original claims for service connection other psychiatric disorders, the duty to inform requires that the RO advise him of the evidence needed to do so. See 38 U.S.C.A. § 5103(a) (1997); Robinette v. Brown, 8 Vet. App. 69 (1995); Graves v. Brown, 8 Vet. App. 522 (1995). Finally, the Board also notes that, although the RO previously considered and denied the veteran's claim for service connection for alcoholism as willful misconduct (specifically, in March 1991), the interepretation of the law has changed since that time. While, effective for claims (such as the one involving his current appeal), filed after October 31, 1990, the payment of compensation is precluded for any disability determined to be the result of the veteran's own willful misconduct or abuse of alcohol or drugs, only the payment of compensation is prohibited in these types of cases, and not the grant of service connection itself, as other benefits may flow from a grant of service connection. See, e.g., Barela v. West, 11 Vet. App. 280 (1998). The RO should specifically consider this interpretation of the law in adjudicating the claim involving alcohol/polysubstance abuse. Accordingly, the Board hereby REMANDS the case to the RO for the following actions: 1. The RO should obtain and associate with the claims file all outstanding records of treatment relating to the veteran. This should specifically include any outstanding records from the Bedford, Massachusetts VAMC, dated prior to and after January 1997; from the Boston, Massachusetts VAMC, dated prior to December 1994 and since March 1995; all outstanding records from the "VAMC T.P.;" and all other records from any facility or source identified by the veteran. The aid of the veteran and his representative in securing such records, to include providing necessary authorizations, should be enlisted, as needed. However, if any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. The RO should request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the veteran and copies of the medical records that served as the basis for any such decision(s). 3. If none of the requested development yields a medical opinion as to a relationship between any of the veteran's psychiatric disabilities and his period of military service, the RO should specifically advise him of the need to submit such competent medical evidence to support the claims. 4. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Upon completion of the above development, and after undertaking any other development deemed warranted by the record, the RO should readjudicate the veteran's claims on appeal, in light of all relevant evidence, and all pertinent legal authority, specifically to include the Barela decision, cited to above, and all other pertinent legal authority cited herein. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 6. If any benefits sought by the veteran continue to be denied, he and his representative must be furnished a Supplemental Statement of the Case (SSOC) and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. That SSOC must include the laws and regulations governing finality and reopening of previously disallowed claims, along with all other authority considered and not previously cited. The purpose of this REMAND is to accomplish additional development and adjudication and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the RO 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. JACQUELINE E. MONROE 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).