Citation Nr: 1316392 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 09-37 321A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from August through September of 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which denied service connection for schizophrenia. A timely Notice of Disagreement (NOD) was received from the Veteran later in October 2007. After a Statement of the Case (SOC) was issued in September 2009, the Veteran perfected his appeal later that month via VA Form 9 substantive appeal. Although the Veteran's September 2009 VA Form 9 substantive appeal is unclear as to whether the Veteran wished to schedule a Board hearing in his appeal, he did submit a November 2009 Hearing Election Form in which he affirmatively indicated his desire to schedule either a video conference or a Travel Board hearing. Before the requested hearing could be scheduled, however, he contacted the RO and expressed his intention to withdraw his hearing request. In June 2011, this appeal was certified to the Board for appellate review. Notice of the same was mailed to the Veteran in August 2011. In April 2013, the RO received a duplicative VA Form 9 from the Veteran in which he again requested a Travel Board hearing. This submission does not state any cause as to why he seeks a hearing at this juncture of his appeal. The Board also notes that an April 2013 brief received on the Veteran's behalf from his representative does not echo or provide any cause for the Veteran's late request for a hearing. Under 38 C.F.R. § 20.1304(b), the Board will not accept a request for a hearing that has been received more than 90 days from the mailing of notice of certification to the appellant. As the Veteran's April 2013 hearing request was received well after the 90 day period following the mailing of VA's August 2011 certification letter had passed, and, as neither the Veteran nor his representative has provided any cause for this late hearing request, the Board will not entertain the Veteran's late hearing request. 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 The service treatment records include an August 1979 enlistment examination report which reflects that a psychiatric examination performed at the time of the Veteran's enlistment was normal. A Report of Medical History also completed by the Veteran during his enlistment examination reflects that he did not report any prior history of psychiatric illness or treatment. Subsequent service treatment records show that the Veteran was evaluated and treated for passive aggressive personality during basic training in September 1979. According to those records, the Veteran had demonstrated a tendency of becoming agitated and hostile during periods of prolonged stress, and, that the Veteran's insight and social judgment were impaired. Overall, treating medical staff at the Psychiatric Clinic at the Naval Regional Medical Center in San Diego opined, "[a]lthough [the Veteran] has had two psychiatric admissions over the past four days, his behavior clearly indicates that he is not exhibiting any thought disorder and that he is definitely acting out in a passive-aggressive and immature manner." The post-service VA treatment records show that the Veteran received initial psychiatric treatment in December 1995. He was accompanied by his father, who reported that the Veteran had been hallucinating, behaving erratically, and demonstrating tangential thoughts after allegedly using angel dust. A mental status examination performed at that time revealed tangential thinking and an effort by the Veteran to present himself in a more favorable light. At that time, he was diagnosed with schizophrenia. Although, as noted above, the Veteran's father suspected that the Veteran's behavior had begun after recent use of angel dust, he also stated that the Veteran had "never been right" since he was 17 years old. VA treatment records dated through October 2004 reflect an ongoing schizophrenia diagnosis, although there is no record of any ongoing or focused psychiatric treatment. Subsequent VA treatment records dated from May 2006 through June 2009 do not reflect any psychiatric treatment. Moreover, those records do not identify schizophrenia or any other psychiatric disorder in the Veteran's list of treated problems. Given the conflicting evidence contained in the VA treatment records as to whether the Veteran has a current psychiatric disorder, and given the Veteran's in-service personality disorder diagnosis, the record is unclear as to whether the Veteran has a current acquired psychiatric disorder. In view of the foregoing evidence, the Veteran should be arranged to undergo a VA psychiatric examination to ascertain whether the Veteran has a current psychiatric disorder. The examination should also address whether any current acquired psychiatric disorder was incurred during service, or, is related to the Veteran's in-service passive aggressive personality disorder. 38 C.F.R. § 3.159(c)(4). Prior to arranging the above examination, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered psychiatric treatment since June 2009. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim for service connection for service connection for an acquired psychiatric disorder, to include schizophrenia. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA examination of his claimed psychiatric disorder. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided psychiatric treatment since June 2009. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA psychiatric examination to determine whether the Veteran has a current acquired psychiatric disorder that is etiologically related to his active duty service. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide a multi-axis diagnosis corresponding to the Veteran's claimed psychiatric disorder, and, provide an opinion as to whether it is at least as likely as not (i.e. is at least a 50 percent probability) that any diagnosed psychiatric condition was incurred during service or is related to his in-service passive aggressive personality disorder. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of service connection for an acquired psychiatric disorder, to include schizophrenia, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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. 2012). _________________________________________________ DAVID L. WIGHT 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).