Citation Nr: 0005888 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 91-51 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from February 1976 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 1990 and January 1991 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 1992, the veteran advised the RO that he moved to New York and his case was transferred to the VA RO in New York, New York. The Board remanded the veteran's case in July 1992 for further evidentiary development. In its remand, the Board noted that, while an unappealed rating decision dated in August 1985 denied service connection for a nervous disorder, the veteran was not notified of this determination and the RO should adjudicate the veteran's claim on a de novo basis. In May 1995, the Board informed the veteran that two former employees of the Board may have tampered with records contained in some veterans' claims files during and after June 1988; that his appeal had been handled by one of those employees; that, based on a review of records at the Board, it appeared that there may have been tampering with his file and that the veteran had the right to inspect his claims file to independently determine whether it had been subject to tampering. An outline of the veteran's rights and procedures for additional action were included. The veteran did not respond to the Board's letter. Accordingly, the Board will proceed with the consideration of his case. Finally, an August 1999 supplemental statement of the case addressed the RO's denial of the veteran's claim of entitlement to service connection for alcoholism. However, a substantive appeal regarding this issue is not associated with the claims file. As such, the Board will confine its determination to the issue as set forth on the decision title page. REMAND As noted above, in July 1992, the Board remanded the veteran's claim to afford him the opportunity to undergo VA examination and submit additional medical evidence in support of his claim. The new medical evidence associated with the claims file includes a July 1998 private medical report from Dr. Bernstein. The report indicates that in May 1997 the veteran was beaten with a baseball bat, sustained a fractured skull and underwent resection of his temporal and frontal lobes. Dr. Bernstein examined the veteran and found that he was pleasant, verbal, alert and oriented to place with impaired insight and judgment. Further, Dr. Bernstein stated that the veteran had impaired cognition secondary to traumatic brain injury and was not currently suffering from major mood or thought disorder. In March 1999, the veteran failed to report for VA examination and, in August 1999, his sister advised the RO that he sustained a severe head injury as a victim of crime and was too cognitively impaired to discuss his situation. According to the post service medical evidence of record, the veteran's psychiatric disorder was variously diagnosed as adjustment disorder with depressed mood, passive aggressive personality disorder, dysthymic disorder, psychotic disorder and schizophrenia. In light of the veteran's unfortunate and traumatic accident during the course of the lengthy appeal period, and in the interest of due process, the Board believes his claim should be REMANDED to the RO for the following actions: 1. The RO should request the veteran (or his designated representative) to provide the names, addresses and approximate dates of treatment for all health care providers who may possess additional records, since July 1998, pertinent to his claims. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims file any records so identified that are not already of record. 2. Then, the RO should request that a VA psychiatrist review the entire claims folder, to include the service medical records and all post service VA and private medical records. The examiner is requested to provide an opinion, to the extent possible, regarding the etiology of any psychiatric disorder diagnosed prior to the veteran's May 1997 brain injury. The examiner is requested to provide an opinion as to the likelihood that any post service diagnosed psychiatric disorder had its onset in service or is otherwise related thereto. Reasons and bases should be provided for all opinions. 3. After completing any necessary development in addition to that specified above, the RO should readjudicate the veteran's claim of entitlement to service connection for a psychiatric disorder. If the disposition of the issue remains unfavorable to the veteran, the RO should furnish the veteran and his representative with a supplemental statement of the case and afford the veteran 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 intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant 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). 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. ROBERT E. SULLIVAN 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).