Citation Nr: 9824107 Decision Date: 08/10/98 Archive Date: 07/27/01 DOCKET NO. 97-04 703 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in an RO rating decision of January 19, 1977, in failing to grant service connection for schizophrenia. 2. Whether new and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The appellant had active service from June 1976 to November 1976 This matter comes before the Board of Veterans' Appeals (Board) on appeal from RO rating decisions dated in March 1996 and July 1996 which found, respectively, that new and material evidence had not been received to reopen a claim for service connection for a nervous condition, and found no CUE in the January 1977 RO rating decision which denied a claim for service connection for schizophrenia. REMAND The appellant and her representative assert that the January 1977 VA RO rating decision failed to apply or give any consideration to the application of the presumption of sound condition, a regulatory and evidentiary presumption of law found at 38 U.S.C.A. § 1111 (West 1991), and that service connection for an acquired psychiatric disability is thereby warranted. A March 1998 report of contact evidences the additional argument of the veteran's representative that the January 1977 RO rating decision failed to properly apply or give any consideration to 38 C.F.R. § 3.1(m) (1997), and that this failure constitutes CUE as well. It is argued that under § 3.1(m) service department (and apparently Medical Evaluation Board (MEB)) determinations that injury, disease, or death occurred in the line of duty are binding on VA, and that in the case presently on appeal, the VA is bound to the October 1976 MEB finding that the appellant's schizophrenia originated in July 1976, that it had been incurred in the line of duty, that the cause was incident to service, and that schizophrenia had not existed prior to service. Accordingly, the Board finds that the appellant's procedural rights in this matter may have been compromised under Bernard v. Brown, 4 Vet.App. 384 (1993), as the August 1996 statement of the case (SOC) fails to make any reference to the above referenced pertinent law and regulations--38 U.S.C.A. § 1111 (West 1991) and 38 C.F.R. § 3.1(m) (1997). Additional failures are also found. The Board similarly notes that further development is needed of the claim of new and material evidence to reopen a claim for service connection for schizophrenia, under existing decisional precedent of the United States Court of Veterans' Appeals (Court). In Akins v. Derwinski, 1 Vet.App. 228 (1991), the Court made the following observation with regard to the failure to apply a certain regulatory presumption as new and material evidence to reopen a claim for service connection: [T]he factual predicate demonstrated by the presumptions have [sic] an important evidentiary value and, to that extent, are the functional equivalent of evidence. [Where] it is clear that this evidentiary presumption was not previously considered and [where] it bears directly and substantially on the issue [on appeal], it provides a basis for reopening the claim. Akins, 1 Vet.App. at 230. (Emphasis added). The language of the regulation dictate[s] that once the presumption [is] in place, the burden shift[s] to the government to offer clear and unmistakable evidence to rebut the presumption of service connection. Akins, 1 Vet.App. at 232. Accordingly, with regard to both claims on appeal, the Board finds that the appellant's procedural rights may have been compromised under Bernard, Supra., as the August 1996 statement of the case (SOC) fails to make any reference to all pertinent law and regulations--including 38 U.S.C.A. § 1111; 38 C.F.R. § 3.1(m) (1997); and, Akins, Supra. As such, the veteran has not been provided notice of all applicable law and regulations governing both of her claims on appeal. That is, the SOC does not specifically address the issues on appeal as asserted, with reference and citation to all applicable law and regulations regarding the presumption of sound condition and CUE, the definition of 'line of duty' as defined in § 3.1(m), and Akins, Supra., regarding the submission of new and material evidence to include the application of the presumption of sound condition. It must also be noted that service medical records, which date from June 30, 1976--the date of the veteran's induction into service--show that she was initially hospitalized in July 1976 for schizophrenia, manifested in parted by increased motor activity, after one week of basic training. A psychiatric history was taken at that time. As such, consideration should be given to the application of 38 C.F.R. § 3.303(c) (1997), wherein preservice origin can be shown either by symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period, or, as with mental disorders characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration, or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis. As the August 1996 SOC is silent as to 38 C.F.R. § 3.303(c), the Board finds that Bernard, Supra, is again indicated, and that on Remand, and upon the completion of the below listed development, the claims on appeal should be readjudicated, with a supplemental statement of the case (SSOC) to include citation to and consideration of all applicable law and regulations, including 38 U.S.C.A. § 1111; 38 C.F.R. §§ 3.1(m) and 3.303(c) (1997); as well as Akins, Supra. The duty of the VA is to assist claimants in the development of facts pertinent to their claims, as set forth in 38 U.S.C.A. § 5107 (West 1991), and 38 C.F.R. §§ 3.103 and 3.159 (1997) require that the VA accomplish additional development of the record if the record currently before it is inadequate. Littke v. Derwinski, 1 Vet.App. 90 (1990). In view of the above, this case is REMANDED for the following: 1. The RO should contact the veteran and request that she submit the names, addresses and approximate dates of treatment of all private or VA psychiatric care providers who treated her for any psychiatric or mental illness both prior to and since service, including treatment from July 1976 to the present, if not already of record. After securing the necessary release(s), the RO should obtain copies of any additional records, if they are not already in the claims folder, including records from "Riverside Hospital" and the VA Medical Centers in Salem, Virginia, and Hampton, Virginia, as well as any other VA medical center identified by the veteran, dated from July 1976 to the present. 2. The RO should readjudicate the issues of whether there was clear and unmistakable error in a rating decision of January 1977 in failing to grant service connection for schizophrenia and whether new and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disability, with specific reference to, and consideration and application of 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. §§ 3.1(m) and 3.303(c) (1997); and Akins, Supra. If the decision, in whole or in part, remains adverse to the veteran, she and her representative should be provided a SSOC, to include all pertinent law and regulations regarding CUE and new and material evidence to reopen a claim, including 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. §§ 3.1(m) and 3.303(c) (1997); and Akins, Supra., with an opportunity to respond thereto. Evidence recently obtained and not previously considered must be reviewed. Thereafter, if indicated, the case should be returned to the Board for appellate consideration. The Board intimates no opinion as to the ultimate outcome of any claim on appeal. No action is required on the veteran's part until further notice. 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 Veterans Appeals 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. 1997) (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. BARBARA B. COPELAND Member, Board of Veterans' Appeals 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) (1997).