Citation Nr: 1318874 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-25 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. 2. Entitlement to a total rating based on unemployability due to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to September 1974. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in New York, New York that declined to reopen the claim of entitlement to service connection for schizophrenia, denied the propriety of a rating reduction for service-connected headaches and denied a total rating based on unemployability due to service-connected disability (TDIU). By decision dated in March 2011, the Board reopened the claim of entitlement to service connection for schizophrenia and denied the matter on the merits. The Board remanded the claims of propriety of a rating reduction for service-connected headaches and TDIU for further development. The Veteran appealed the denial of service connection for schizophrenia to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 Joint Motion for Partial Remand, the parties requested that the Court vacate that portion of the Board's decision that denied service connection for schizophrenia. In a February Order, the Court vacated the Board's March 2011 decision that denied entitlement to service connection for schizophrenia and remanded the matter for further consideration and instructions consistent with the February 2012 Joint Motion for Partial Remand. By decision in November 2012, the Board restored the 50 percent disability evaluation for service-connected headaches from October 1, 2009, and denied an evaluation in excess of 50 percent for headaches. This matter is no longer for appellate consideration. The issues of entitlement to service connection for schizophrenia and TDIU were remanded for further development. Following review of the record, 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 Veteran asserts that he has schizophrenia of service onset for which service connection is warranted. He also avers that service-connected disorders render him unable to obtain or engage in any gainful employment. Review of the record discloses that when this case was remanded in November 2012, the Board stated that in the Joint Motion, the parties agreed that the Board failed to give adequate reasons and bases to support its decision to deny entitlement to service connection for schizophrenia in the March 2012 decision. It was specifically noted that the Board failed to fully consider all theories of entitlement to service connection for the claimed psychiatric disorder as raised by the record. Citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), to include any relationship between a head injury in service, and a subsequent diagnosis of organic brain syndrome some years after separation. It was determined that the Board failed to address these aspects of the claim, as well as the fact that the Veteran may have had a psychiatric disorder that pre-existed his enlistment. In light of the above, the parties concluded that the Veteran should be provided a VA examination to address the nature and etiology of his schizophrenia. Specifically, it was requested that a VA psychiatrist or psychologist examine the Veteran and provide an opinion as to whether the evidence showed that a psychiatric disorder pre-existed service, and what evidence did or did not support that conclusion, or suggested a different conclusion, or why any evidence was rejected in forming a conclusion. The examiner was requested to provide an opinion as to whether schizophrenia may have been related to head trauma in service, and the clinical significance of the diagnosis of organic brain syndrome relative to the diagnosis of schizophrenia. A complete rationale was requested for the opinions provided. Pursuant to the Board's November 2012 remand, the Veteran was requested to provide treatment records for psychiatric disability, to include any pertaining to treatment prior to military enlistment in August 1971. He responded in correspondence dated in January 2013 that he did not have further evidence to provide VA in support of his claim. He failed to identify where the purported treatment had occurred and did not provide any release of information form. The Veteran was afforded an examination by a VA psychiatrist in February 2013. The examiner indicated that the appellant did not have a traumatic brain injury and that it was not shown in the records reviewed. The examiner later referred to his having head trauma in service. She stated that no other mental disorder had been diagnosed, but later referred to the appellant's organic brain syndrome diagnosed in April 1979. Following examination, the examiner opined that schizophrenia was at least as likely as not incurred in service, but also stated that the appellant had schizophrenia prior to entering the military. She related that the Veteran "had evidence" that he had a schizophrenia diagnosis before he joined the military. However, there are only the Veteran's inconsistent statements in this regard that he had such disability prior to service. It was indicated that there was an increase in underlying pathology of the condition during service "as indicated by several disciplinary actions...and also the fact that he was demoted from E4 to E1." However, there is no documentation of disciplinary actions in the claims folder nor is there reference to any symptoms or findings that would support that conclusion. Moreover, this opinion tends to conflict with subsequent findings in an April 2012 addendum below. The case was returned to the examiner for clarification and additional rationale relative to baseline symptomatology prior to service and whether schizophrenia had been aggravated beyond normal progression during active duty. It was also requested that the examiner provide an opinion as to the extent that the service-connected disabilities and schizophrenia affected the Veteran's ability to obtain and retain gainful employment. In an addendum dated in April 2013, the examiner opined that the baseline of schizophrenia prior to service was severe based on his history of severely impaired occupational functioning as indicated by suspensions from school, disorderly conduct, multiple arrests, etc. The Board points out, however, that there is no objective evidence of such events or occurrences in the claims folder. It was also determined that schizophrenia had not been aggravated beyond normal progression because "it is a well known fact that Schizophrenia has downward progression is a common course of Schizophrenia which is the case with this veteran [sic]." This statement is vague and conclusory and does not adequately respond to the question asked. The examiner added that schizophrenia could render people unable to secure and maintain substantially gainful employment which was the case with the Veteran. The Board notes, however, that the examiner did not provide any employability assessment with respect to his service-connected disorders, as requested in the RO's instructions. In view of the above, the Board finds that both examination reports are inconsistent and/or substantially flawed, and are inadequate to render an appellate decision at this time for reasons cited above. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268. 271 (1998). In Stegall, the Court of Appeals for Veterans Claims (Court) held that "where...the remand orders of the Board...are not complied with, the Board itself errs in failing to insure compliance." Id. In this instance, the Board points out that the development sought by the Board as to the issue on appeal has not been adequately accomplished. Therefore, another remand is required to address the deficiencies. See 38 C.F.R. § 19.9 (2012). Additionally, the Board observes that although military infractions have been reported by the Veteran, his personnel folder is not of record. This should be requested and associated with the claims folder. As well, his DD-214 reflects that upon discharge from active duty, he was transferred to the Army Reserve. The location of any records in this regard should be ascertained, requested and associated with the claims folder. Further, in some documents the Veteran has indicated that he was hospitalized for psychiatric care in service in "Heidelbrahm" or "Heidelbraun" Germany. As hospitalization records are sometimes kept separate from other service treatment records, and separate attempt to locate those records should be undertaken. It is noted that service treatment records on file make no reference to any hospitalization during service. Additionally, in view of his contentions of disciplinary action at high school, appellant should be requested to identify the school and provide a release for records. Indications on file are that he left school without graduating to join the military, but records do not otherwise confirm disciplinary problems. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran's personnel file and associate with the claims folder. Also make a search for records of the reported in-service hospitalization in Germany. If appellant needs to be contacted for clarification of the facility, such contact should be made. All attempts to obtain records should be documented in the claims folder. 2. Request any Army Reserve records and associate with the claims folder. 3. Request that the appellant provide information concerning his attendance at high school, including its location, and a release of information form so that his high school records might be obtained for association with the claims folder. Again, all attempts to obtain records should be associated with the claims folder. 4. Following receipt of any additional information, but whether or not additional information is received, refer the case to a VA psychiatrist or psychologist, preferably one who has not seen or treated the Veteran previously, for review of the record and a clinical opinion. The claims folder must be made available to the examiner. The clinical findings should be reported in detail. The examiner should respond to the following questions with detailed and complete rationale. a) Does the evidence of record reflect that the Veteran displayed symptoms of an acquired psychiatric disorder or schizophrenia during active service or within one year of separation in 1974? Please provide date of onset or diagnosis of schizophrenia. b) Is an acquired psychiatric disorder more likely than not of post service onset and unrelated to active duty? c) Is there is objective documentation of record that the Veteran had an acquired psychiatric disorder or schizophrenia that clearly and unmistakably pre-existed service? d) If so, do service treatment records demonstrate that an acquired psychiatric disorder or schizophrenia clearly and unmistakably increased in severity beyond normal progression of the disease during active duty? e) Is it at least as likely as not that organic brain syndrome diagnosed in April 1979 is related to head trauma in service? f) Is it at least as likely as not that an acquired psychiatric disorder or schizophrenia is related to head trauma in service? g) Is it at least as likely as not that the Veteran has an acquired psychiatric disorder or schizophrenia that is proximately due to (secondary to) or has been made chronically worse (aggravated by) a service-connected disorder, including headaches? h) Do the Veteran's service-connected disabilities render him totally disabled and unable to secure or maintain gainful employment. The opinions should be fully explained with complete rationale. 5. The RO should ensure that the clinical examination and report requested above comply with this remand. If the report is insufficient, or if a requested action is not taken or is deficient, it should be returned for correction. See Stegall, supra. 6. After taking any further development deemed appropriate, re-adjudicate the claims, including TDIU. If a benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative and afford an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ MICHAEL D. LYON 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).