Citation Nr: 1305516 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 08-30 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and R. L. W. ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service in the United States Army from March 21, 1976 to April 14, 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO declined to reopen a previously denied claim for service connection for paranoid schizophrenia. The Veteran appealed this rating action to the Board. In July 2012, the Veteran and his brother, R. L. W., testified before the undersigned at the Atlanta, Georgia RO in support of his claim. A copy of the hearing transcript is of record. The Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court found that the Board had erred in not considering the scope of the Veteran's claim for service connection for post traumatic stress disorder (PTSD) as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record (in that case, diagnoses of chronic PTSD and depression). Here, the evidence of record does not show that the Veteran has ever been diagnosed with a psychiatric disability other than schizophrenia. However, to the extent the Veteran may carry diagnoses of other psychiatric disorders, the broad characterization of the issue as stated in the title page is consistent with Clemons. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The new and material claim must be remanded for additional substantive and procedural development. Although the Board sincerely regrets the delay this will cause, adjudication cannot proceed without further development. I. Substantive Development-Outstanding VA, Social Security Administration (SSA) and Private Treatment records VA's obligation to obtain relevant governmental records in the context of an application to reopen a previously denied claim is not contingent upon the Veteran first showing that new and material evidence has been "presented or secured." 38 U.S.C.A. § 5108. Although under 38 U.S.C.A § 5103(f) (West 2002) provides that with regard to previously disallowed claims that "[n]othing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured," the use of the term "section" refers not to the enactment of the entirety of the VCAA, but instead to the plain meaning of the term "section" such as in 38 U.S.C.A § 5103(f). Stated alternatively, the provisions of 38 U.S.C.A § 5103A(c)(3), which mandate that VA obtain relevant government records are in a different section of the VCAA. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To the extent new and material evidence may exist, which may in turn be "secured" within the meaning of 38 U.S.C.A. § 5108, assistance to the Veteran under the VCAA applies. The Veteran testified that he had sought treatment for his schizophrenia from the VA Medical Center (VAMC) in Lawrence County, Georgia from 1981 to the present. (Transcript (T.) at pg. 4). The claims file does not contain any post-service VA treatment records of the Veteran. According to the Department of Veterans Affairs official website, VA treatment facilities in Lawrenceville, Georgia include a VA Community Based Outpatient Clinic (CBOC) and Vet Center, not a VAMC. As noted, VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). Thus, the Board will request all treatment records of the Veteran, dated from 1981 to the present from the above-cited VA CBOC and Vet Center, each located in Lawrenceville, Georgia. In addition, a February 1987 private treatment report reflects that the Veteran reported being on "Disability" for his mental problems. (See February 1987 report, prepared by Community Mental Health Center of Middle Georgia). There is no indication that the RO ever determined whether the Veteran was in receipt of disability benefits from the SSA or other agency, such as the state of Georgia, or an employer or insurance company, etc.; and if so, whether attempts were made to obtain any records thereof. The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation, see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that the legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records). However, this is a case where the Board cannot tell from the evidence available whether the Veteran was or is in receipt of disability benefits, whether from the SSA or otherwise; and if so, whether such benefits are relevant in determining whether new and material evidence may be presented or secured to reopen his previously denied claim for an acquired psychiatric disability, to include schizophrenia. As there is a reasonable possibility that disability records, if available, could help the Veteran substantiate his new and material claim on appeal, the duty to assist requires VA to attempt to obtain these records. Therefore, on remand the RO/AMC shall attempt to obtain a complete copy of the Veteran's SSA disability file, if extant. 38 U.S.C.A § 5103A(c)(3). A February 1987 treatment report, prepared by Community Mental Health Center of Middle Georgia, also reflects that the Veteran reported having sought psychiatric treatment at the Mental Health Center in South Carolina and of being hospitalized six (6) months previously (i.e., August 1986) at Central State Hospital for psychiatric problems. The RO has not attempted to obtain treatment records from these private treatment facilities. As these private treatment records might contain probative information regarding the etiology of any currently present schizophrenia, efforts to retrieve them are also required. 38 C.F.R. § 3.159(c)(1)(2012). II. Procedural Development-Corrective Duty to Assist and Notice Letter In March 2006, the Veteran sought to reopen his previously denied claim for an acquired psychiatric disorder, to include schizophrenia. Although the RO provided the Veteran with notice of the information and evidence necessary to reopen this claim in letters, dated in April and November 2006, these letters contain the incorrect date of the last final denial of his claim. The RO indicated that the last final denial of the claim for service connection for schizophrenia was June 25, 1991 instead of July 20, 2000. (See RO's decision letter to the Veteran, dated July 20, 2000. VA Form 1-4107, Notice of Procedural and Appellate Rights, was attached to this letter). Thus, on remand the Veteran should be sent a duty to assist and notice letter that contains the correct date of the RO's last final denial of the claim for service connection for schizophrenia. Kent v. Nicholson, 20 Vet. App. 1 (2006). Accordingly, a remand is necessary to obtain the above-cited outstanding VA, SSA and private treatment records, as well as to provide the Veteran with a duty to notify and assist letter on how to substantiate his new and material claim that contains the correct date of the last final denial (i.e., July 20, 2000). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Attempt to obtain the Veteran's treatment records, dated from 1981 to the present from the Vet Center and VA CBOC, each located in Lawrenceville, Georgia. If such records are unavailable, the RO must indicate the steps that were taken to obtain these records and provide the Veteran and his representative an opportunity to provide them. 2. After securing all necessary release forms from the Veteran, the RO/AMC must contact the Mental Health Center of South Carolina and Central State Hospital (as referenced by the Veteran in a February 1987 report, prepared by Community Mental Health Center of Middle Georgia), and request all mental health treatment records of the Veteran. All records received must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 3. Contact the Veteran to discern the nature of any disability benefits he may have received and/or is currently receiving. Thereafter, if the Veteran identifies any source of disability benefits and/or records, make appropriate and reasonable efforts to obtain any such records, such as may be available from the SSA. In so doing, associate with the claims file copies of such records, including but not necessarily limited to, any application for SSA disability benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 4. Provide the Veteran with a duty to notify and assist letter with regard to how to substantiate his petition to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include schizophrenia. The RO last finally denied the claim for service connection for schizophrenia in a July 20, 2000 decision letter, which also included the Veteran's appellate rights (i.e., VA Form 4107). The claim was denied because there was no evidence that his currently diagnosed schizophrenia/nervous condition was incurred during service. The Veteran should be informed of the date of the last denial of the claim and the reasons for the denial on remand. Kent, supra. . 5. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's new and material claim shall be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative shall be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JONATHAN B. KRAMER 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).