Citation Nr: 1308536 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 09-38 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a personality disorder. 3. Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to July 1979 and from March 1980 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran failed to report for a travel board hearing scheduled in August 2011. He did not request that the hearing be rescheduled, nor has he provided good cause. Therefore, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). In December 2011, the Board remanded this case for additional development. It has since returned to the Board. The Virtual VA eFolder has been reviewed. 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 In October 2008, the RO denied entitlement to service connection for paranoid schizophrenia, a personality disorder, and hypertension. The Veteran disagreed with the decision and subsequently perfected this appeal. The paranoid schizophrenia issue has been recharacterized to consider any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Pursuant to the December 2011 remand, the Board directed additional development. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In Dyment v. West, 13 Vet. App. 141 (1999), the Court found that it is substantial compliance with remand orders that is required in order to meet the obligations of Stegall. The Board regrets the delay occasioned by another remand, but on review, it does not appear that there was substantial compliance with the previous remand instructions. The Board directed that the RO contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), and any other appropriate location to request complete service personnel records for both of the Veteran's periods of active duty. In December 2011, the RO requested the Veteran's entire personnel file for his period of service from March 1980 to May 1980. These records were received; however, it does not appear that the service personnel records were requested from the Veteran's initial period of service from June 1978 to July 1979. The Board also directed that the RO contact the NPRC, the RMC, and any other appropriate location, to make a specific request for service psychiatric or mental health records and to ascertain whether mental health records were stored somewhere other than with the service treatment records. In December 2011, the RO requested the complete medical/dental record (service treatment records) from the Veteran's second period of service. On review, these records were already contained in the claims folder. There is no indication that the RO specifically requested the Veteran's mental health records (mental health jacket). Service records dated in May 1980 reference a neuropsychiatric evaluation, and additional efforts must be made to obtain these records. The Board further directed that the RO should request verification of the dates the Veteran served in the Reserves and obtain his service personnel and treatment records for such service. Review of the claims folder shows that, in July 2008, the RO attempted to verify service in the Marine Corps from July 1979 to May 1984. A response received in October 2008 modified the dates to show Marine Corps service from March 1980 to May 1980. However, there is no indication that the RO made any requests to verify Reserve service following the December 2011 remand. The Board observes that there appears to be some confusion as to the nature of the Veteran's service. That is, in his initial claim, he reported Reserve service from June 1978 to May 1984. In a December 2011 statement, the Veteran reported that he was not in the Reserves, but instead had active duty service in the Marine Corps when he was released. In an October 2012 statement, he reported that he had two discharges, one from the Army Reserve and one from the Marine Corps. DD Form 214's show the Veteran had active service from June 1978 to July 1979 and from March 1980 to May 1980. 9 months and 15 days of prior inactive service is also shown. Additional efforts should be made to verify Reserve service and to obtain any records pertaining to such service. With regard to the Veteran's psychiatric claims, the Board notes that he has not been provided with a VA examination to determine the nature and etiology of any currently diagnosed disorder. Review of the Veteran's service treatment records shows that the Veteran's psychiatric system was reported as normal on enlistment in March 1980. A record dated on May 1, 1980, indicates that he wanted to get out of the service due to his Baptist religious beliefs. He was described as very impulsive, over reactive, and with poor judgment. The impression was immature personality traits. A record dated on May 9, 1980, also notes that he underwent a neuropsychiatric evaluation while on active duty. This report, however, is not of record. The Veteran was subsequently discharged for unsuitability - personality disorders. In his VA Form 9, the Veteran argued that he was discharged from the Marines because of schizophrenia. In an October 2012 statement, he questioned why service connection was not being granted. He reported that he was discharged for a personality disorder and was diagnosed with the same disorder by VA. The Veteran underwent a VA outpatient psychiatric evaluation in February 2008. At that time, he reported lifelong psychiatric problems and stated that he was discharged due to mental problems. Following an interview and examination, the assessment was schizophrenia, paranoid type, and chronic depressive disorder, not otherwise specified - seemingly reactive to inability to work. It was also noted that antisocial personality disorder could not be ruled out. On review, there is evidence of current psychiatric disability. The Veteran was apparently evaluated during service for psychiatric concerns and was discharged due to a personality disorder. The Board notes that personality disorders are not diseases or injuries for compensation purposes, and, except as provided in § 3.310(a), disability resulting from them may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127 (2012). Under the circumstances of this case, the Board finds that a VA examination is needed. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, information in the record indicates that the Veteran receives VA medical treatment. The September 2012 supplemental statement of the case shows that records from the Salem VA Medical Center for the period from October 2007 to September 2012 were considered. These records are not listed in the Virtual VA eFolder, and on review of the claims folder, it appears that VA medical records were last printed in July 2008. On remand, relevant VA medical records should be obtained for the period from July 2008 to the present. 38 C.F.R. § 3.159(c)(2). Finally, the evidence of record suggests that the Veteran has a significant psychiatric disability and is unable to work. Under these circumstances, the AMC/RO should determine whether the Veteran is in receipt of any benefits from the Social Security Administration. If so, medical records pertaining to the award of such benefits should be requested. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the NPRC, the RMC, and any other appropriate location, to request complete service personnel records for the Veteran's period of active duty from June 1978 to July 1979. All records obtained must be associated with the claims file or Virtual VA eFolder. 2. The AMC/RO should contact the NPRC, the RMC, and any other appropriate location to request records of all mental health treatment and evaluations (mental health jacket) that the Veteran received during his period of service from March 1980 to May 1980. The AMC/RO is advised that a generic request for service treatment records related to this period of service will not suffice. A specific request must be made for the mental health jacket, if any. All records obtained must be associated with the claims file or Virtual VA eFolder. 3. The AMC/RO must request verification of the dates the Veteran served in the Reserves and obtain any service personnel and treatment records for such service. All records obtained must be associated with the claims file or Virtual VA eFolder. 4. The AMC/RO should request relevant records from the VA Medical Center in Salem, Virginia, for the period from July 2008 to the present. All records obtained must be associated with the claims file or Virtual VA eFolder. 5. The AMC/RO should determine whether the Veteran is in receipt of benefits from the Social Security Administration. If so, it should request all medical records upon which the award of benefits was based. All records obtained must be associated with the claims file or Virtual VA eFolder. 6. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 7. Thereafter, the AMC/RO should schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The examiner is requested to identify any currently diagnosed psychiatric disorders and to state whether it is at least as likely as not that any such disorder is related to his active military service or events therein. In making this determination, the examiner is requested to discuss the in-service diagnosis of a personality disorder and address whether there is any evidence of a superimposed psychiatric disorder. A complete rationale for any opinion expressed should be provided. 8. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 9. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). 10. Upon completion of the above development, and any additional development deemed appropriate, the RO should readjudicate the issues of entitlement to service connection for an acquired psychiatric disorder, a personality disorder, and hypertension. All applicable, laws, regulations, and theories of entitlement should be considered. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2011). _________________________________________________ JESSICA J. WILLS 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).