Citation Nr: 0005285 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 93-01 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and reactive psychosis. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.S. Lane, Associate Counsel INTRODUCTION The veteran served on active duty from August 1974 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the veteran's claim of entitlement to non service-connected pension benefits and determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for an anxiety disorder and reactive psychosis. In an October 1994 decision, the Board determined that new and material evidence had been submitted to reopen a claim of entitlement to service connection for a generalized anxiety disorder and reactive disorder. The Board further determined that the veteran's claims were well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The Board then remanded the veteran's case for additional evidentiary development, which was completed by the RO. In April 1996, the RO issued a supplemental statement of the case which continued to deny the veteran's claims of entitlement to non service-connected pension benefits and entitlement to service connection for a generalized anxiety disorder and a reactive psychosis. Thereafter, the claims folder was returned to the Board. In January 1997, the veteran's claim again came before the Board on appeal. After reviewing the record, the Board found that although the development requested in the October 1994 remand had been completed by the RO, further evidentiary development was necessary. The Board also determined that the veteran's claim of entitlement to service connection for a generalized anxiety disorder and reactive psychosis was more appropriately characterized as a claim of entitlement to service connection for an acquired psychiatric disorder. The Board then remanded the case to the RO for additional development. In October 1999, the RO issued a supplemental statement of the case which continued to deny the veteran's claims of entitlement to non service-connected pension benefits and entitlement to service connection for an acquired psychiatric disorder. The claims folder was then again returned to the Board. REMAND For the reasons and bases set forth below, the Board finds that its January 1997 remand was not complied with, and thus, another remand is necessary before the veteran's claims can be properly adjudicated. As noted above, the Board determined in its October 1994 remand that the veteran's claims were well grounded within the meaning of statutes and judicial construction. See 38 U.S.C.A. § 5107(a). Having previously found the veteran's claims to be well grounded, VA has a continuing duty to assist her in the development of her claims. In accordance with this duty, the Board finds that further evidentiary development is necessary before this case can be properly adjudicated. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance by the Board or the RO with remand instructions is neither optional nor discretionary. The Court further held that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. In the January 1997 remand, the Board noted that there was evidence of record indicating that the veteran suffered from a thyroid condition and endometriosis, and that she had been treated in the past for cellulitis of the right ankle. The Board instructed the RO to provide the veteran with an additional VA physical examination in order to determine the degree of disability, if any, caused by these conditions. To the Board's knowledge, the veteran was not provided with the requested examination. In the January 1997 remand, the Board also noted that effective November 7, 1996, during the pendency of this appeal, the VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating mental disorders. 61 Fed. Reg. 52695 (Oct. 8, 1996) (codified at 38 C.F.R. § 4.130). The Board further noted that because the veteran's claim was filed before the regulatory change occurred, she was entitled to application of the version most favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). Because the veteran had not yet been notified of this change in law, and because she had not been provided with a summary of the new criteria, the Board determined that the RO should provide the veteran with a supplemental statement of the case that fully evaluated her claim of entitlement to non service-connected pension benefits under both the old and the revised rating criteria. Although the veteran was subsequently provided with supplemental statements of the case in June 1999 and October 1999, the veteran's claim has yet to be evaluated under both the old and the revised criteria. In this case, the RO has failed to comply with the Board's January 1997 remand instructions. Specifically, the RO failed to provide the veteran with a VA physical examination to address the severity of her thyroid condition, endometriosis, and cellulitis of the right ankle; and to issue a supplemental statement of the case discussing the veteran's claim of entitlement to non service-connected pension benefits under both the old and revised rating criteria for mental disorders. Thus, in accordance with Stegall, the Board finds that this case must be remanded to ensure full compliance with the directives of the January 1997 remand. Furthermore, the Board notes that treatment records from the University of Texas Medical Center reflect that in April 1981 the veteran was admitted for evaluation following complaints of generalized anxiety and depression. The veteran indicated that she had been referred there by a physician from the VA Clinic in Houston, Texas, where she had reportedly been receiving treatment for similar symptoms for several months. Pursuant to the Court's decision in Bell v. Derwinski, 2 Vet. App. 611 (1992), records of VA medical treatment are deemed to be constructively of record in proceedings before the Board, and must be obtained. The veteran has repeatedly asserted that during service she participated in pharmaceutical research studies related to depression at the Fabre Research Clinics in Houston, Texas. In support of this contention, she submitted an October 1991 letter from Dr. L.F., who indicated that the veteran did participate in such studies from October 1977 to June 1978, and that she was prescribed the drugs Ciclazindol and Wellbatrin. The record reflects that in October 1995, the RO requested all available treatment records pertinent to the veteran's claim from the Fabre Research Clinic. There is no indication in the record that any response was ever received. Thereafter, the RO submitted another such request in September 1997. In a response letter received later that month, P.C., the custodian of records at the Fabre Research Clinic, stated that although the veteran did participate in research studies at their facility from 1977 to 1978, there was no therapy involved in these studies. P.C. further stated that the only records available pertaining to the veteran were lab reports and electrocardiogram (EKG) studies, and that there was a cost of $25.00 to obtain such records. In August 1999, the veteran submitted a letter she received from P.E., the President of the Fabre Research Clinic. P.E. stated in the letter that although P.C. had indicated that only lab reports and EKG's were available, it was unclear how she knew this and it was unlikely that she had the veteran's records at her disposal when she made this statement. P.E. also indicated that she was unaware of there ever having been a $25.00 fee for searching for patients' records. P.E. informed the veteran that they could in fact continue to search for her treatment records if she would provide them with additional information, including the names of the drugs prescribed and the dates of treatment. In light of this recently received letter from P.E., and because the requested information regarding the dates of the veteran's treatment and name of the drugs involved is currently associated with the claims folder, the Board finds that an another attempt should be made to obtain these records. Although the Board regrets further delay, in light of the reasons and bases set forth above additional development is warranted. This case is accordingly remanded for the following actions: 1. The RO should contact the veteran and request that she identify any additional VA or non-VA medical care providers who may have treated her for her psychiatric problems. After securing any necessary releases, the RO should obtain copies of all treatment records referred to by the veteran which have not been previously obtained. In particular, the RO should obtain copies of all treatment records from the VA Clinic in Houston, Texas dated between April 1980 and August 1981, and from the Fabre Research Clinic in Houston, Texas from October 1977 to June 1978. These records should then be associated with the claims folder. 2. The RO should schedule the veteran for a VA physical examination in order to determine the nature and severity of her endometriosis, cellulitis of the right ankle and thyroid disorder. The claims folder, including a copy of this remand, should be made available to the examiner. The examiner should offer an opinion as to symptomatology and level of impairment, if any, attributable to these disabilities. The examiner should also render an opinion as to what degree, if any, these disabilities impair the veteran's ability to obtain and retain substantially gainful employment. The report of the examination should be associated with the veteran's claims folder. 3. Following completion of the foregoing, the RO should readjudicate the veteran's claims of entitlement to service connection for an acquired psychiatric disorder and entitlement to non service-connected pension benefits. Additional evidentiary development may be undertaken, if deemed to be appropriate by the RO. If any benefit sought on appeal remains denied, the veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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. Barry F. Bohan 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).