Citation Nr: 1300517 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-29 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include schizophrenia. 2. Entitlement to service connection for a seizure disorder. 3. Entitlement to service connection for an upper spine disorder, to include as secondary to the claimed seizure disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1985 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above issues. The Veteran timely appealed those issues. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in May 2011; a transcript of that hearing is associated with the claims file. This case was initially before the Board in January 2012, when it was remanded for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In his notice of disagreement, the Veteran indicated that he as seen by "an examiner at VA Bay Pines." There are no records from Bay Pines VA Medical Center, or any other VA facility, of record, and it does not appear that any attempt to obtain those records has been made. Unfortunately, the Board overlooked this in the previous remand and a remand to obtain those records should be made at this time. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Likewise, a thorough review of the claims file demonstrates several instances of prior private treatment, particularly for his psychiatric disorder, both prior to and subsequent to the Veteran's military service. While the Board generally notes that the Veteran denied any prior psychiatric treatment before service in his May 2011 hearing, a November 1998 psychiatric evaluation for Social Security benefits demonstrates that the Veteran reported at that time that he had two suicide attempts while he was in high school and that for a month he was hospitalized in North Hampton, Massachusetts for reports of auditory and visual hallucinations, paranoid ideations and delusions, and other psychiatric symptomatology. In that examination, the Veteran also indicated that he became "addicted" to LSD at the age of 15 and that he entered a drug rehabilitation program. In short, after a thorough review of the Veteran's claims file, the Board finds that there are several potential private treatment records of which attempts to obtain those records have not been made. See Id. Such includes, but is not be limited to: * University of Massachusetts Hospital, approximately 1983 * Winmore or Windmore Psychiatric Center or Hospital * North Hampton State Hospital, approximately 1983 or 1984 * Horizon Hospital, approximately 1997 * Suncoast Medical Center/Community Mental Health Center, 1998 to Present * The Harbor Behavioral Health Care Institute, 2005 to Present * Dr. Herton (sp?) for his claimed spinal condition * Any ongoing treatment with Gulf Coast Medical Center since December 2010 In light of the above noted 1998 psychiatric evaluation, the Board additionally finds that there is sufficient evidence to warrant a VA examination for the Veteran's claimed psychiatric disorder in order to determine whether such disorder began in military service or is otherwise related to military service, or whether the Veteran's psychiatric disorder pre-existed service and was aggravated by his short stint in the military. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain information from the Veteran regarding any VA treatment he has had. The RO/AMC should then attempt to obtain any identified records, including from the Bay Pines VA Medical Center, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. If records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a formal finding of unavailability and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Ask the Veteran to identify any private treatment or evaluation that he may have received for his claimed conditions, which are not already of record, including but not limited to: * University of Massachusetts Hospital, approximately 1983 * Winmore (or Windmore) Psychiatric Center (or Hospital) * North Hampton State Hospital, approximately 1983 or 1984 * Horizon Hospital, approximately 1997 * Suncoast Medical Center/Community Mental Health Center, 1998 to Present * The Harbor Behavioral Health Care Institute, 2005 to Present * Dr. Herton (sp?) for his claimed spinal condition * Any ongoing treatment with Gulf Coast Medical Center since December 2010 After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file. If records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a formal finding of unavailability and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA psychiatric examination in order to determine whether his current psychiatric disorder is began in or was aggravated by military service. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify any psychiatric disorders found, including schizophrenia. The examiner should then address the following: (a) Whether the Veteran's psychiatric disorder clearly and unmistakably pre-existed his military service. The examiner should discuss the 1998 evaluation and other evidence of record demonstrating hospitalization for suicide attempts in high school and any other relevant evidence of record, including the Veteran's lay testimony that he was not treated for any psychiatric problems prior to service in his May 2011 hearing. If clear and unmistakable evidence exists, the examiner should explicitly note which evidence he/she relies on for that finding. The examiner should then move to (b) of this inquiry. If clear and unmistakable evidence cannot be shown that the Veteran's psychiatric disorder pre-existed service, then the examiner should move to inquiry (c). (b) Whether the Veteran's psychiatric disorder clearly and unmistakably was not aggravated (e.g., made permanently worse beyond the normal progression of that disease) by the Veteran's military service. The examiner should discuss the Veteran's lack of any noted psychiatric treatment in service, as well as the noted "no medical problems" notation in December 1985. The examiner should also discuss the Veteran's lay testimony from his May 2011 hearing that he had psychiatric treatment in service (which is uncorroborated in the record). The Board notes that there is a presumption of aggravation and that the examiner must clearly and explicitly articulate the evidence relied upon for his/her finding if a finding of non-aggravation is found. If the examiner fails to find clear and unmistakable evidence of either pre-existence (in (a)) or non-aggravation (in (b)), the examiner is instructed to find as conclusive fact that the Veteran was psychiatrically sound on entrance into service. The examiner should then move to inquiry (c) below. (c) Whether the Veteran's psychiatric disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to the Veteran's military service. The examiner should discuss the Veteran's noted lack of any psychiatric treatment in service, his lay testimony notwithstanding, as well as the Veteran's statements that his psychiatric symptomatology began during service and has been chronic and continuous since that time. The examiner should also discuss the conflicting medical history provided by the Veteran throughout the 1990's with that which he is currently providing, including that his first hospitalization for psychiatric symptomatology was 2 years after discharge from service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following the above development, the originating agency should review the claims file and readjudicate the Veteran's claims of service connection for psychiatric, to include schizophrenia, seizure and upper spine disorders. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ J. A. MARKEY 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) (2012).