Citation Nr: 1309803 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-34 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as schizophrenia, posttraumatic stress disorder, and anxiety. 2. Entitlement to service connection for a neurological disorder, claimed as numbness of the feet and toes. ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from August 1987 to November 1987, with additional service in the National Guard. This case originally came before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). A June 2011 Board decision denied service connection for a psychiatric disorder and for a neurological disorder. The July 2009 Board denial of service connection for psychiatric and neurological disorders was vacated and remanded back to the Board by the Court of Appeals for Veterans Claims (Court) in a September 2012 Memorandum Decision. 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 According to the September 2012 Court Memorandum Decision, this case needed to be returned to the Board because the Board failed to address whether the Veteran's claims satisfied the elements required to obtain a medical examination discussed in McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Court held in McLendon that the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The duty to assist under 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) is triggered when it is necessary to obtain an examination to make a decision in the case. Factors to consider in determining whether an examination is necessary include whether there is evidence of a current disability and whether there is evidence that the disability may be associated with the appellant's military service but there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The record reveals that the Veteran has a current diagnosis of schizophrenia and peripheral neuropathy. Although there are no psychiatric complaints in service, there is evidence that the Veteran was released from service due to "unsatisfactory participation." The initial notation of a psychiatric or neurological disability was not until a number of years after service discharge. According to a March 2009 statement from M. Fidel, M.D., the Veteran indicated that he had had hallucinations, delusions, and paranoia as far back as service; Dr. Fidel concluded that his claim was plausible because the most recent epidemiology data showed the age of onset of symptoms of schizophrenia in males as 15 to 18, which would include the Veteran. It was noted in an October 2009 statement from C. Unterseher, M.D., that the Veteran had had problems with anxieties secondary to paranoid thoughts due to schizophrenia since service. According to an August 2009 statement from Tulsa Family Medicine, the Veteran had bilateral lower extremity sensorimotor peripheral neuropathy that most likely began in service due to repetitive trauma from military drills. Although these private opinions indicate a nexus between service and the Veteran's current psychiatric and neurological disorders, these opinions are based primarily on the Veteran's subjective history and do not include consideration of the medical evidence as a whole. Consequently, the Board concludes that the issues on appeal must be remanded for nexus opinions based on the total record. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA determines, as in this case, that there is a need to verify the etiology of a disability. See also 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO will request that the Veteran provide the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for psychiatric and/or neurological disability since October 2009, which is the date of the most recent medical evidence on file. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2011). 2. After the above has been completed, the AMC/RO will schedule the Veteran for a VA examination by an appropriate medical or mental health care professional to determine whether the Veteran has an acquired psychiatric disability due to service. The following considerations will govern the examination: a. The claims folder, including a copy of this remand and all records on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by any Virtual VA records that were reviewed. b. After reviewing the claims file and examining the Veteran, the examiner must express an opinion on whether it is at least as likely as not (50 percent or more probability) that the Veteran has an acquired psychiatric disorder that was incurred in or aggravated beyond normal progression by service. The examiner must acknowledge and reiterate the relevant history supporting his/her conclusions. The examiner's opinion should include reference to the March 2009 statement from Dr. Fidel and the October 2009 statement from Dr. Unterseher noted above. d. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to make a determination without resorting to mere speculation, he/she should so state. e. If the examiner responds to the above inquiry that he/she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. The report prepared must be typed. 3. The AMC/RO will also schedule the Veteran for a VA examination by an appropriate health care provider to determine whether the Veteran has a neurological disability due to service. The following considerations will govern the opinion: a. The claims folder, including a copy of this remand, and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by any Virtual VA records that were reviewed. b. After reviewing the claims file and examining the Veteran, the examiner must provide an opinion on whether it is at least as likely as not (50 percent or more probability) that the Veteran has a neurological disorder that was incurred in or aggravated beyond normal progression by service. The opinion should include reference to the August 2009 statement from Tulsa Family Medicine noted above. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to make a determination without resorting to mere speculation, he/she must so state. d. If the examiner responds to the above inquiry that he/she cannot so opine without resort to speculation, the RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. The report prepared must be typed. 4. The AMC/RO must notify the Veteran that it is his responsibility to report for the above examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for one of the aforementioned examinations, documentation will be obtained which shows that notice scheduling the examination was sent to the last known address. It will also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the AMC/RO will review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 6. The AMC/RO will also consider all of the evidence of record and re-adjudicate the Veteran's claims for service connection for a psychiatric disorder and for a neurological disorder. If either of the benefits sought on appeal remains denied, the Veteran will be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. 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). The purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ DENNIS F. CHIAPPETTA, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).