Citation Nr: 1307930 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 03-21 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an earlier effective date prior to July 24, 1998, for increased compensation for service-connected schizophrenia, paranoid type. 2. Entitlement to a rating in excess of 10 percent for schizophrenia, paranoid type. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in San Diego, California, in which the RO increased the Veteran's disability rating for schizophrenia, paranoid type from noncompensable to 10 percent disabling effective July 24, 1998. The Veteran subsequently perfected his appeal as to both issues. In his June 2003 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. In April 2011 correspondence, he was notified that his Board hearing had been scheduled for a date in May 2011. In April 2011 correspondence the Veteran wrote that he could not attend the May 2011 scheduled hearing as he was incarcerated until 2017. Notably, he wrote "hopefully I can see you then." In August 2012 correspondence, he was notified that his Board hearing had been scheduled for a date in September 2012. However, he failed to report for such hearing. As the Veteran is incarcerated with a release date in 2017, he was provided with a letter in December 2012 notifying him, that as he was presently incarcerated and such may adversely affect his ability to attend a hearing, he may submit a written statement for consideration, his representative may submit an audio cassette or written argument, or his representative may submit a motion to appear along and present argument. No response has been received to date. The Board notes that the December 2012 letter informed him in error that he would be subsequently scheduled for a Board hearing. In this regard, the Veteran had already failed to attend his Board hearing in September 2012 and has not submitted any evidence that he is now able to attend a hearing, in fact, he has indicated that he will not be released until 2017. Therefore, in light of the facts of this case, to include the fact that the Veteran failed to report for his scheduled September 2012 Board hearing, the Board finds that his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran was discharged from military service in 1971 due to a diagnosis of undifferentiated schizophrenia. He filed a claim for service connection for a "nervous disorder" immediately after his discharge and was initially given a 50 percent disability rating, effective July 24, 1971, the day after his discharge from military service. Subsequently, when he failed to report to a VA examination, the RO reduced his disability rating to noncompensable, effective August 1, 1972. Later, in 1974 the Veteran filed a claim for an increased rating for his psychiatric disorder and the RO increased his disability rating to 30 percent, effective August 5, 1974, but the Veteran again failed to report to a subsequent VA examination so the RO decreased him to a noncompensable rating, effective September 1, 1980. In October 1990, the Veteran filed another claim for an increased rating for his psychiatric disorder, but the RO continued the noncompensable rating previously assigned, indicating that, while the Veteran had been in and out of psychiatric treatment facilities, the treatment was for polysubstance abuse rather than his psychiatric disorder. In February 2002, the Veteran filed the current claim on appeal. He was afforded a VA examination in April 2002 and the examiner diagnosed psychotic disorder, not otherwise specified. The examiner also noted that the evidence suggested that the Veteran did not have schizophrenia as he had not been on anti-psychotic medication for several years. By rating decision dated in August 2002, the RO increased the Veteran's schizophrenia rating to 10 percent disabling, effective July 24, 1998. Significantly, the RO assigned a 1998 effective date rather than a 2002 effective date (the year the Veteran filed the claim) citing a July 24, 1998, VA outpatient treatment records that showed the Veteran was being treated for a major depressive disorder episode. In the May 2003 statement of the case, the RO found that the majority of the Veteran's psychiatric problems are related to his substance abuse and not an acquired psychiatric disorder. Therefore, pursuant to VAOPGCPREC 2-98, which holds that disabilities resulting from alcohol or drug abuse are not eligible for service connection, the RO denied an increased rating and an earlier effective date. During a December 2003 Informal Conference, the Veteran argued that the treatment for his service-connected schizophrenia led to his substance abuse. Also, January 2004 VA treatment records note continued treatment for depressive disorder as well as an impression of R/O (rule out) bipolar disorder. Moreover, in January 2009 correspondence, the Veteran wrote that he was being treated for his psychiatric disorder in prison and taking anti-psychotic medication daily. VA's ability to provide assistance to incarcerated Veterans is limited by the circumstances of the Veteran's incarceration. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Nevertheless, VA adjudicators must "tailor their assistance to the peculiar circumstances of confinement. [Incarcerated Veterans] are entitled to the same care and consideration given to their fellow Veterans." Bolton, 8 Vet. App. at 191, quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Unfortunately, the Board finds that additional development is necessary in this case. First, in the November 2012 Informal Hearing Presentation the Veteran's representative wrote that there were outstanding treatment records. In this regard, there were no records from the California Department of Corrections (CDOC) despite the Veteran's January 2009 statement that he was being treated for his psychiatric disorder in prison and taking anti-psychotic medication daily. Thus, on remand, the agency of original jurisdiction (AOJ) should attempt to obtain these records. Also, the Veteran was last afforded a VA examination in 2002 and there have been allegations of an increase in severity of his service-connected psychiatric disorder. Specifically, the April 2002 VA examination report noted that the Veteran had not been on anti-psychotic medication for several years, but in January 2009 correspondence the Veteran wrote that he was taking anti-psychotic medication daily. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Furthermore, during a December 2003 Informal Conference, the Veteran argued that the treatment for his service-connected schizophrenia led to his substance abuse. Service connection may be granted, on a secondary basis, for a disability, to include alcohol or drug abuse, which is proximately due to, or the result of an established service-connected disorder. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310; VAOPGCPREC 2-98; Allen v. Brown, 7 Vet. App. 439 (1995). Thus, an opinion is necessary regarding whether the Veteran's substance abuse is secondary to his service-connected schizophrenia. VA is obligated to assist the Veteran in obtaining evidence or explain its exhaustive but unsuccessful attempts to obtain that evidence. See Bolton, supra. On remand, the AOJ should fully document the efforts taken to obtain an examination of the Veteran as well as the possibility of obtaining a medical opinion without an examination. As the Veteran is currently incarcerated and will be until 2017, the AOJ should take reasonable steps to attempt to schedule an examination, to include conferring with prison authorities to determine whether the Veteran can be escorted to a VA facility for an examination or examined in prison by appropriate personnel. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of the necessity of obtaining treatment records the CDOC and inform the Veteran that he may submit these records himself or authorize VA to obtain them on his behalf. The AOJ must also include a Release and Authorization form so that the AOJ has the authority to obtain these records. Once the AOJ receives the signed Release and Authorization form from the Veteran, attempt to obtain copies of treatment records from the CDOC. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims file. 2. After obtaining any outstanding treatment records, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected psychiatric disorder. The AOJ should confer with prison authorities to determine whether the Veteran can be escorted to a VA facility for an examination or examined in prison by appropriate personnel. All efforts to schedule the Veteran for an examination should be documented. If it is determined that it is not possible to afford the Veteran an examination, the AOJ should obtain the requested medical opinion from an appropriate medical professional without an examination. The claims file should be reviewed by the examiner. The examiner should determine the current nature and extent of the Veteran's service-connected schizophrenia, paranoid type. In this regard, the examiner should identify the nature and severity of all manifestations of the Veteran's schizophrenia, paranoid type, and note the impact that such have on his daily life and employment. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's nonservice-connected substance abuse is caused or aggravated (permanently increased in severity beyond the natural progress of the disease) by his service-connected schizophrenia. A complete rationale should be provided for any opinion expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).