BVA9508165 DOCKET NO. 93-11 724 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from February 1977 to November 1977. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 1992 rating decision of the Philadelphia, Pennsylvania Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which held no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disability. REMAND The appellant entered service under a delayed enlistment program. She enlisted in June 1976. It does not appear that she had any duty prior to entry onto active duty in February 1977. The physical examination conducted in June 1976 contains no pertinent complaints or findings. This examination report also contains a stamp that no disqualifying defects were found in February 1977. In October 1977, however, the appellant was hospitalized for psychiatric evaluation following a suicide attempt. Such records indicate that the appellant reported a history of chronic marital problems and depression following child birth at age 16, but that feelings of depression, isolation and sadness had exacerbated over the previous two week period. The attending examiners concluded that the appellant suffered from an acute situational disturbance and hysterical personality resulting in a suicide attempt, and released her to active duty. The appellant was subsequently discharged from active service at her request, and the examination upon separation revealed a normal psychiatric evaluation. The appellant filed an initial application for disability compensation for entitlement to service connection for a psychiatric disability in January 1978. Private inpatient (IPT) reports dated in January 1978 indicate that he appellant was admitted due to a second suicide attempt, at which time she was diagnosed with reactive depression. Following a June 1978 VA examination indicating a diagnosis of chronic depressive neurosis, entitlement to service connection for a psychiatric disability was denied in an October 1978 rating decision. However, the examiner did not offer an opinion as to whether the appellant's current disability existed prior to service and was aggravated therein, or alternatively, whether current impairment was attributable to such service. The appellant expressed disagreement with that decision in December 1978, and a statement of the case was issued. However, a timely substantive appeal was never received by the RO, and therefore, such rating decision became final. In October 1991, the appellant applied to reopen such claim. At that time, she reported continuous relevant VA and private psychiatric treatment, and subsequently submitted copies of VA IPT reports dated in September and November 1991. None of the aforementioned reported medical treatment reports are currently of record, nor is there any indication that the RO attempted to obtain them. In addition, the appellant submitted a November 1991 statement from Linda White, who indicated she initially discovered the appellant upon her in-service suicide attempt. By a February 1992 rating decision, entitlement to service connection for a psychiatric disorder was denied on the basis that no new and material evidence had been submitted to reopen such claim, and the appellant expressed disagreement with that decision in May 1992. In the statement of the case, the RO argues that such new evidence does not tend to show aggravation of a pre-existing psychiatric condition, however, it is unclear as to whether the RO considered laws and regulations applicable to the appellant's presumption of soundness. In the appellant's January 1993 substantive appeal, she stated that she was currently receiving "welfare benefits" due to her inability to work, and requested a personal hearing before the Board at the RO. There are no records or reports from any state or federal agency currently associated with the claims folder. Additionally, the record reflects that the appellant initially failed to respond to the RO's March 1993 letter requesting clarification as to the type of hearing requested, and the case was then certified to the Board. Following certification, she requested a personal hearing at the RO in a May 1993 letter, and recently confirmed such request pursuant to a March 1995 letter from the Board. The Board has a duty to assist the appellant in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (Court) has held the duty to assist involves obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990); Murincsak v. Derwinski, 2 Vet.App. 363 (1992). See also Counts v. Brown, 6 Vet.App. 473 (1994) (even absent the submission of new and material evidence, "the duty to assist may still be triggered under appropriate circumstances" ) (citing White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992)); Gowen v. Derwinski, 3 Vet.App. 286, 289 (1992) (a persuasive single judge opinion stating duty to assist still applies absent a showing of new and material evidence when either the appellant has specifically requested assistance in obtaining probative medical records, or when evidence already before the board raises sufficient notice of possible probative private medical records). The appellant has requested both the RO and the Board to obtain copies of relevant private and VA treatment records not currently associated with the claims folder prior to making a final determination on appeal. In addition, it is unclear as to whether the appellant is currently receiving state or federal disability compensation from another government agency whose records and reports would be relevant to her current claim. Pursuant to the aforementioned recent decisions of the Court, the Board agrees that such an attempt for the reported relevant records must be made for a complete and adequate decision. In addition, the Board concludes that a new psychiatric examination is necessary in order to determine the nature and etiology of the appellant's psychiatric disability. Finally, in light of the appellant's request, the RO should re-schedule a personal hearing before a hearing officer at the RO. Accordingly, the case is REMANDED for the following developments: 1. After obtaining the appropriate signed authorization release of information forms, the RO should contact the following physicians, hospitals and treatment centers and attempt to obtain all relevant medical treatment records available: (1) Allentown Hospital, 17th and Chew Streets, Allentown, Pennsylvania, 18102, for inpatient and emergency room treatment in 1990 and 1991; (2) Muhlenburg Hospital Center, Bethlehem, Pennsylvania, for treatment in 1988; (3) Houston Northwest Medical Center, P.O. Drawer 90730, Houston, Texas, 77290, for inpatient and emergency room treatment in 1991; (4) Wilks Barre, Pennsylvania VA Medical Center for 1991 treatment; (5) Dr. Elaine Schwinge, 2895 Hamilton Boulevard, Allentown, Pennsylvania, for treatment from 1988 to 1990; (6) Dr. John Dale, 829 Peakwood Drive, #100, Houston, Texas, 77090, for treatment in 1991; (7) Interface-Samaritan Counseling Center, 6823 Cypresswood Drive, Spring, Texas, 77379, for treatment in 1991; (8) Dr. Stephan Shu, 2527 East Tupas Boulevard, Allentown, Pennsylvania, for treatment from 1988 to 1990; (9) Dr. D.A. Huey, 17202, Red Oak, Suite 209, Houston, Texas, 77290 for treatment in 1991; (10) Dr. Paul Orr, 401 North 17th Street, Allentown, Pennsylvania, for treatment form 1986 to 1987; (11) Dr. Alan Muto, 1425 Linden Street, Allentown, Pennsylvania, for treatment in 1991; and (12) Dr. Antonio Almazan, 317 Bridge Street, Catasaugua, Pennsylvania, for treatment in 1988. The claims folder should contain documentation of the attempts made to obtain the records. If records are sought but not received, the appellant and her representative should also be informed as to the negative results. 38 C.F.R. § 3.159 (1994). 2. The RO should also contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided her with additional relevant pre- or post- service treatment not already reported to the RO or the Board. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If treatment is reported and those records are not obtained, the appellant and her representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1994). 3. The RO should obtain from the appellant necessary information for obtaining records from the state welfare office and/or Social Security Administration, as well as any other state or federal governmental agencies from which the she may be receiving disability income. Records requested should include information concerning the decision made and the evidence used in reaching any decision. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. 4. The RO should schedule the appellant for a personal hearing before a hearing officer at the RO. The appellant should be contacted and duly notified of the scheduled hearing. All pieces of correspondence, as well as the transcript of such hearing, should be made a part of the claims folder. 5. Upon receipt of the requested information, the RO should schedule the appellant for a complete psychiatric examination to determine the nature and etiology of any psychiatric disability currently manifested. If chronic psychiatric impairment is found, an opinion as to whether it existed prior to the appellant's military service should be entered, and if so, whether it was aggravated therein. Alternatively, the examiner is requested to determine whether current chronic psychiatric impairment is attributable to her military service or is unrelated to any in-service event or occurrence. All indicated tests and studies should be done. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon in the report. The examiner is further requested to adequately summarize the relevant history, including relevant treatment and previous diagnoses, as well as all current objective clinical findings and subjective complaints, and describe in detail the reasons for all medical conclusions. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations and . The claims folder should be made available to the examiner for review purposes prior to the examination, and the complete examination report should be associated with the claims folder. 6. Thereafter, the RO should readjudicate the claim, setting forth clearly whether new and material evidence has been submitted, and whether the claim is reopened. The provisions of 38 U.S.C.A. §§ 1132 and 1153 as well as 38 C.F.R. §§ 3.304 and 3.306 should be discussed as appropriate. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until she receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this claim, pending completion of the requested development. MICHAEL D. LYON 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).