Citation Nr: 0810009 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 07-04 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, variously diagnosed as schizophrenia and a bipolar disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from September 1966 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Claims for service connection for schizophrenia have been previously denied and not appealed. The most recent claim was for a bipolar disorder. The RO handled this matter on a de novo basis. As this provides the appellant with the broadest possible review, the Board will do likewise. In February 2008, the veteran, sitting at the RO, testified during a hearing conducted via videoconference, with the undersigned Veterans Law Judge sitting at the Board's main office in Washington, D.C. A transcript of the hearing is of record. At that time he submitted additional medical evidence in the form of VA medical records, dated from September 2006 to January 2008, regarding his treatment in Connecticut. He waived initial RO review of this evidence. The issue was framed as service connection for a psychiatric disorder on a de novo basis. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks service connection for a psychiatric disorder that he maintains had its onset during military service or within the year after his discharge on September 1, 1970. During his recent Board hearing, he testified that he had problems in service, was disciplined twice, by a lieutenant and a commanding captain, and had difficulty getting along with other airman (see hearing transcript, page 4). The veteran said he had difficulty relating to other airman in a normal manner and felt constantly persecuted (Id. at page 8). He denied having any problems in high school. He indicated that, after his discharge, he worked for an auto parts company from approximately November 1970 to March 1971 when he experienced "delusions of reference" (Id. at 2). The veteran said that, in September 1971, he tried to enter a community college, but his delusions caused him to commit a crime that led to his diagnosis of schizophrenia, more recently diagnosed as bipolar disorder (Id. at 3). In support of his claim, the veteran submitted two signed statements from his brothers, both dated in October 2004, to the effect that they noticed changes in his behavior upon his return from active duty, including that, during 1971, he turned to religion and became very paranoid. It is noted that the service personnel records are not on file. There may be evidence of the discipline actions or of changes in efficiency reports that may be pertinent herein. The record reflects that, on October 28, 1971, the veteran was arrested for assault with intent to ravish and committed the next day to Danville State Hospital where he was diagnosed with paranoid schizophrenia. He was subsequently found not guilty by reason of insanity. A June 1973 record from Fairview Hospital indicates that the veteran remained in the military service for four years "working in a generally responsive fashion". It was noted that, after discharge, he lived on his savings, worked in an auto parts store, began to attend the local junior college, "and it was about this time that the [veteran] developed the clear signs of his mental illness". A November 1977 private hospital record indicates that the veteran's history of schizophrenic episodes extended back to age 16. A February 1985 private medical record reflects that his past medical history of a schizophrenic thinking disorder was with him since his late teens. Here, it appears that the veteran was diagnosed with a psychosis thirteen months after his discharge from active service. Pursuant to 38 U.S.C.A. §§ 1110 (West 2002), a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. Even if there is no record of psychoses in service, its incurrence in service will be presumed if it was manifest to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. Id. The Board believes it would be helpful to have a VA psychiatrist render an opinion regarding the etiology of the veteran's psychiatric disorder, including whether it had its onset during the year after his discharge from active service. Second, a March 1986 VA medical record from the VA Medical Center (VAMC) in Fayetteville, North Carolina, indicates that the veteran was eligible for referral to the Mental Hygiene Clinic (VAMHC) and a May 1990 signed statement from a private physician is to the effect that the veteran was followed in the psychiatric department at the Fayetteville VA Hospital. Here, the record suggests that additional VA medical evidence might be available that is not before the Board at this time. Thus, an effort should be made to obtain the additional VA medical records. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Again the service personnel records may also be pertinent. Finally, the record includes a November 1977 letter from the Social Security Administration (SSA) to the veteran regarding his receipt of SSA disability benefits. In a January 1999 letter, he said that the SSA benefits stopped in early 1998. In an October 2002 letter, he described his repeated unsuccessful applications for SSA disability benefits. The United States Court of Appeals for Veterans Claims ("the Court") has held that, where VA has notice that the veteran is receiving disability benefits from SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Baker v. West, 11 Vet. App. 163 (1998) and Hayes v. Brown, 9 Vet. App. 67 (1996). Further, in Tetro v. Gober, 14 Vet. App. 110 (2000), the Court held that VA has the duty to request information and pertinent records from other Federal agencies, when on notice that such information exists. This would include a decision from the SSA. See Tetro v. Gober, supra. Accordingly, the veteran's SSA records should be obtained in connection with his claim. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain all medical records regarding the veteran's treatment at the VAMHC in Fayetteville, North Carolina, for the period from 1986 through at least 1990-if not later and at the VA medical facilities in Connecticut dated from January 2008 to the present, and any additional VA or private medical records identified by the veteran. If any records are unavailable, a note to that effect should be placed in the claims file and the veteran and his representative so advised in writing. Appellant should also be asked if he had any treatment prior to service, and if so, an attempt to obtain those records should be undertaken. Finally, the service personnel records, including all efficiency reports and disciplinary actions should be obtained. 2. The RO/AMC should contact the Social Security Administration and request copies of the administrative decision and all medical records considered in the veteran's claim for SSA disability benefits awarded in approximately 1977 (and any subsequent disability determination evaluations). All records obtained should be associated with the claims file. 3. Then, the veteran should be scheduled for a VA examination performed by a qualified specialized physician, e.g., a psychiatrist¸ to determine the etiology of any diagnosed psychiatric disorder found to be present. All indicated tests and studies should be conducted and all clinical manifestations reported in detail. The veteran's claims files should be made available to the examiner prior to the entry of an opinion and the examination report should indicate if the examiner reviewed the records. The examiner is requested to respond to the following: a. does the appellant currently have a disorder manifested by psychoses, e.g., bipolar disorder, schizophrenia, or other chronic psychiatric disability (or disabilities)? b. For each currently diagnosed psychiatric disorder, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the diagnosed psychiatric disorder was (i) incurred, (ii) had its onset, or (iii) was first manifested by symptoms, in service or within one year following the veteran's service discharge on September 1, 1970, or whether such an etiology or relationship is unlikely (i.e., less than a 50-50 probability). c. If the examiner determines that it would be speculation to state the likelihood that there was or was not an onset of manifestation of a diagnosed psychiatric disorder in service or within one year following the veteran's service discharge, the examiner should so state, and should explain the reasoning for that determination. A rationale should be provided for all opinions rendered. NOTE: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Thereafter, the RO should readjudicate the veteran's claim for service connection for a psychiatric disorder, variously diagnosed as a bipolar disorder and schizophrenia. If the benefits sought on appeal remain denied, the veteran and her representative should be provided with a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal since the December 2006 statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).