92 Decision Citation: BVA 92-13867 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-41 892 ) DATE ) ) ) THE ISSUES 1. Whether the substantive appeal received on April 25, 1989, was timely filed. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to an increased evaluation for tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from July 1972 to May 1976. This matter essentially stems from a rating decision dated January 14, 1988, which denied service connection for a psychiatric disorder as well as entitlement to a disability evaluation greater than 10 percent for tinnitus. He was notified of this decision in a letter dated February l, l988. A notice of disagreement was received on February 8, 1988. A statement of the case was issued on April 28, 1988, with a cover letter instructing the veteran to return the enclosed substantive appeal (VA Form 1-9) within 60 days. A substantive appeal was received April 25, 1989. A rating decision dated June 1, 1989, determined that the veteran had not filed a timely substantive appeal. He was notified of this decision in a letter dated June l2, l989. A notice of disagreement from this decision was received on June 26, 1989. The case was received at the Board on October 31, 1989, and docketed on November 21, 1989. The veteran's accredited representative, the Disabled American Veterans, added additional written arguments to the record on January 30, 1990. By a decision dated April 12, 1990, the Board remanded this case back to the regional office for additional development, and noted that the evidence submitted with an untimely substantive appeal should be construed as a reopened claim for service connection for a psychiatric disorder, and entitlement to an increased rating for tinnitus. A supplemental statement of the case was issued on May 10, 1990. Following receipt of additional evidence, a rating decision dated March 20, 1991, confirmed and continued the denial of the veteran's claims. A supplemental statement of the case was issued on April 4, 1991. A substantive appeal was received on May 29, 1991. The veteran attended a personal hearing at the regional office on June 27, 1991. A supplemental statement of the case was issued on September 17, 1991. Following receipt of additional evidence, a supplemental statement of the case was issued on December 11, 1991. The case was received at the Board on March 31, 1992, and docketed on April 3, 1992. The veteran's accredited representative, the Disabled American Veterans, added additional written arguments to the record on April 16, 1992. The case is now ready for appellate review. Although the Board finds the record adequate to adjudicate the issue of timeliness of the substantive appeal, such a determination now by the Board would be subject to judicial review, and could result in piece meal litigation in light of the issues REMANDED herein. As such, a determination regarding the timeliness issue is deferred, pending completion of action requested in this REMAND. REMAND Following a preliminary review of the record, we note that additional development is needed in order to assure adequacy of the record as well as to assist the veteran in the development of his claims. Specifically, we cannot overlook the fact that a recently received statement dated October 29, 1991, from a Department of Veterans Affairs (VA) clinical psychologist at a VA domiciliary, White City, Oregon, refers to outstanding pertinent psychiatric treatment records at the Mental Hygiene Clinic at that facility dating from June l5, l987, to include an important progress note by a staff psychiatrist dated September 16, 1987, which is not of record. Such information, along with any other outstanding records of VA treatment, may be helpful to the veteran's claim. Also, we note that adequate VA psychiatric examination by a panel of two psychiatrists along with a psychological evaluation should be undertaken in order to determine the nature and extent of any underlying identifiable psychiatric disability and etiology to include whether or not such disorder if developed secondary to the veteran's service-connected tinnitus would prove helpful in our review of this case. Likewise, an adequate VA examination in order to determine the nature and extent as well as degree of functional impairment suffered due to the veteran's service-connected tinnitus might prove helpful in our review of the veteran's claim especially with respect to whether the provisions of 38 C.F.R. § 3.321(b) are met. Also, we note that the record contains a VA hospital summary reflecting a lengthy period of hospitalization from April 12, 1981, to May 11, 1981, at the VA Medical Center, Portland, Oregon. While the veteran reported being nervous all of his life at that time, he now claims that he only meant that he had had problems with perspiration all of his life, and not being nervous. Obtaining the complete hospital records in order to examine the extent of any psychiatric history that the veteran may have given during the course of hospitalization at that time might prove helpful in our review. We recognize the fact the VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C. § 5107(a) (l992); 38 C.F.R. § 3.103(a) (l99l). The United States Court of Veterans Appeals (the Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examinations. Littke v. Derwinski, U.S. Vet. App. No. 89-68, slip op. at 4 (December 6, 1990). This duty includes additional VA examination by specialists, when needed. Hyder v. Derwinski, U.S. Vet. App. No. 90-254, slip op. at 6 (April 15, 1991). Under the circumstances of this case, we are of the opinion that additional assistance is required. The case is remanded to the regional office for the following: 1. The regional office should obtain the complete hospital records pertinent to the veteran's hospitalization at VA Medical Center, Portland, Oregon, from April 12, 1981, to May 11, 1981, to include all reports of special psychiatric and psychological evaluations as well as testing for tinnitus. Any obtained data should be associated with the claims folder pending completion of all appellate action. 2. The regional office should obtain all outstanding pertinent mental hygiene medical records on file at the VA domiciliary at White City, Oregon, dating from June l5, l987, to include all progress notes from Dr. Bradley, and especially the progress note of September 16, 1987, as noted by a VA staff clinical psychologist in a statement dated October 29, 1991. Any obtained data should be associated with the claims folder pending completion of all appellate action. 3. The RO should arrange for the veteran to undergo an examination by an appropri- ate specialist in order to determine the nature and extent as well as degree of functional impairment attributable to his service-connected tinnitus. All indicated special tests should be undertaken. Thereafter, the veteran should undergo examinations by a board of two VA psychiatrists who have not previously examined the veteran along with a psychological evaluation in order to determine the nature and extent of any underlying identifiable acquired psychiatric disorder and render an opinion as to whether such disorder, if found, developed as a consequence of the veteran's service-connected tinnitus. When this development has been completed, the claim should be reviewed by the regional office which should also determine the total history of the veteran's service-connected tinnitus and all potentially applicable regulations, as discussed in Schafrath v. Derwinski, U.S. Vet. App. No. 89-114 (November 26, 1991). If any benefit sought on appeal is denied, the appellant should be given a supplemental statement of the case with regard to the additional development and should also be afforded an opportunity to respond. The record should be returned to the Board for further appellate consideration, if in order. No action by the appellant is required until further notice is received. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * URSULA R. POWELL (Member temporarily absent) LAWRENCE M. SULLIVAN (CONTINUED ON NEXT PAGE) *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C. § 7252 (1992), 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.