Citation Nr: 1313691 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 96-04 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant (Veteran) represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from January 1957 to July 1959. The current appeal arose from a determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The appeal has been previously remanded, and denied, by the Board. The claim was remanded for additional development in October 1999 and October 2003. In February 2006, the Board denied the claim. In a March 2008 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand, and vacated the February 2006 decision. In July 2008, the Board remanded the claim again. Then, in April 2011, the Board again denied the claim. The Veteran appealed the Board's denial to the Court which, in an August 2012 decision, vacated the Board's denial. The appeal is again REMANDED to the RO. VA will notify the Veteran if further action is required. The entire record, to include the Veteran's virtual VA claims file, has been reviewed. No relevant evidence has been included in the claims file since the supplemental statement of the case (SSOC) dated in December 2010. REMAND The Court's August 2012 decision to vacate is based on a lack of adequate analysis of the Veteran's lay statements. The Veteran asserts that he developed a psychotic disorder towards the end of his active service in July 1959. He asserts that the psychotic disorder led to his discharge from reserve service at some point in 1960, within one year of the July 1959 discharge from active service. The service records pertaining to active service between January 1957 and July 1959 show the Veteran threatened to injure a superior in May 1958, was noted to have hypochondriasis in April 1959 and had a physical altercation with his roommate in June 1959. The STRs pertaining to the period of reserve service following July 1959 are not of record, and may have been destroyed while in possession of the government. The earliest medical evidence indicating a psychiatric disorder is found in a private medical report, dated in December 1960, 17 months following discharge from active duty. The report details inpatient treatment in December 1960 for "schizophrenic reaction, paranoid type" but also indicates a history of behavioral problems dating from August 1959, when he assaulted another person. The record is clear in establishing that the Veteran has had psychiatric problems since December 1960. But again, that report, the earliest medical evidence of record of a chronic psychiatric disorder, is dated over one year after the July 1959 discharge from active service. The two crucial questions before the Board are, first, did psychosis have its onset during active service or, second, did its onset occur within one year of discharge from active service in July 1959. 38 C.F.R. §§ 3.303, 3.307, 3.309. In an effort to answer these questions, VA provided the Veteran with a compensation examination in July 2005. After reviewing the claims file and assessing the Veteran, the examiner, a psychiatrist, diagnosed the Veteran with psychosis, not otherwise specified, in remission currently and alcohol abuse, in remission, provisional. The examiner concluded that the record did not indicate chronic psychosis during active duty, or prior to late 1960, within one year of the July 1959 discharge from service. However, the examiner did state that the Veteran endorsed "intermittent episodes of psychosis" dating back to the late 1950s. In its April 2011 denial of the Veteran's claim, the Board relied on the July 2005 VA report's conclusions. However, based on the Court's August 2012 decision, an additional VA compensation examination is warranted. The Court indicated that the Veteran's lay statements regarding his mental state prior to July 1960 have not been afforded due consideration. As such, a new examiner should review the claims file, assess the Veteran, and then, after close consideration of the Veteran's lay statements of record, produce a report which contains opinions addressing the two crucial questions before the Board - did the Veteran's psychosis have its onset during active service, or within a year of discharge from service. The examiner who conducts the new VA examination should closely consider the Veteran's statements regarding his state of mind between January 1957 and July 1960. This is particularly important in this matter because reserve service records, which might have contained corroborating evidence regarding the period between July 1959 and July 1960, are not of record through no fault of the Veteran's. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (in cases where the STRs are unavailable through no fault of the claimant, VA has a heightened duty to assist a veteran in developing his claims). The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). The RO should also again attempt to obtain the Veteran's records from his Army Reserve service. According to service records, the Veteran was assigned to the "USAR Control Gp (Annual Tng) CG XV US Army Corps (Res) Presidio of San Francisco." Accordingly, the RO should contact the Army Human Resources Command in St. Louis, and any other appropriate agency, to determine whether any Reserve service personnel and/or service treatment records are available. See M21-1MR, Part III, Subpart iii, Chap. 2, Sec. B, Par. 13.d. The Veteran should also be informed pursuant to 38 C.F.R. § 3.159(e) (2012) that the Social Security Administration informed VA that his medical records had been destroyed. Accordingly, the case is REMANDED for the following action: 1. Contact the Army Human Resources Command in St. Louis, and any other appropriate agency that has not already been contacted, and request the termination date of Reserve service, as well as copies of Reserve service personnel and service treatment records pertaining to the Veteran. The Veteran's service records show he was assigned to the "USAR Control Gp (Annual Tng) CG XV US Army Corps (Res) Presidio of San Francisco" from July 21, 1959. See M21-1MR, Part III, Subpart iii, Chap. 2, Sec. B, Par. 13.d. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. The Veteran should also be provided with notice of alternate sources of evidence that he can submit to substitute for Reserve records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 2. Notify the Veteran and his representative and (a) inform them the Social Security Administration records could not be obtained; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. Then, schedule the Veteran for a VA psychiatric examination to ascertain the nature, extent, onset, and etiology of his psychiatric disability. The examiner must review the claims file and the report must note that review. Specifically, the VA examiner should address the following: a) Provide a diagnosis for any current psychiatric disorder. Any necessary tests should be performed. b) State whether it is as likely as not (50 percent probability or greater) that the Veteran's psychiatric disorder is related to his period of service which ended in July 1959, or had its onset prior to July 1960. The examiner's attention is directed to the Veteran's lay statements of symptoms he experienced during service, and since service. The examiner's attention is also directed to the private December 1960 psychiatric report which indicates behavioral problems in late 1959. The examiner's attention is also directed to service records showing the Veteran threatened to injure a superior in May 1958, was noted to have hypochondriasis in April 1959 and had a physical altercation with his roommate in June 1959. Please provide a complete explanation for the opinion. 4. Then, after ensuring the examination report is adequate and undertaking any additional development action that is deemed warranted, readjudicate the claim. If the claim remains denied, issue a SSOC and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ S.S. TOTH 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).