Citation Nr: 1330360 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-25 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia (paranoid type), psychosis, and depressive disorder, not otherwise specified (NOS). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from August 1993 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that the RO has adjudicated the issue as entitlement to service connection for schizophrenia, paranoid type (also claimed as stress). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Medical evidence of record contains diagnoses of schizophrenia (paranoid type), psychosis, and depressive disorder, NOS. Therefore, the Board has recharacterized the claim on appeal as reflected on the title page. In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disorder, to include schizophrenia (paranoid type), psychosis, and depressive disorder, NOS. For the reasons that follow, his claim must be remanded. The Veteran's service treatment and personnel records are unavailable (see Memorandum dated September 18, 2006). When there is evidence that a Veteran's service personnel records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran's VA and private treatment records show that he was diagnosed with schizophrenia as early as October 2004 and depressive disorder by April 2005. His schizophrenia has been characterized as chronic. The Veteran contends that his psychiatric symptoms began during service, and lay statements from his mother reflect her competent and credible report that she noticed changes in his behavior while he was on active duty. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Because the Board finds the account of the Veteran's mother as to the onset of the Veteran's psychiatric symptoms both competent and credible, and since the appropriate diagnosis of the Veteran's condition is unclear, the Board finds a medical examination is necessary to identify his psychiatric diagnosis and to address whether his psychiatric disability is related to service. Id. Additionally, the Veteran has identified relevant treatment records that have not been obtained. Specifically, he indicated that he was treated at the New Orleans VA Medical Center (VAMC) for psychiatric symptoms from 2001 to 2005, but the earliest treatment records from that facility in the claims file are dated June 2005. The most recent VA treatment records in the file are dated August 2008. Thus, on remand, any relevant outstanding VA treatment records from that facility should be obtained. Finally, the claims file contains an undated application for Social Security Administration (SSA) benefits, but does not reflect whether the Veteran has actually been awarded SSA disability benefits. Accordingly, there may be outstanding SSA records that may be relevant to the Veteran's claim. As there is no actual indication as to which disability the Veteran's SSA claim entailed or whether such claim was actually filed, the Veteran should first be asked to provide this information and if the records exist and would be relevant, such records should be requested on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010); 38 C.F.R. § 3.159(c)(2) (2013). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain VA treatment records, physically or electronically, from the New Orleans VAMC dated from January 2001 through April 2005, and from August 2008 to the present, that are relevant to the Veteran's mental health. If no relevant records exist, then the claims file should be annotated to reflect such and the Veteran notified of such. 2. Request copies of any SSA disability benefit determinations as well as any copies of the medical records on which such determinations were based. If the records are not available, physically or electronically, the claims file should be annotated to reflect such and the Veteran should be notified of such. 3. Notify the Veteran that he may submit additional lay statements from himself, as well as from individuals such as friends and/or family members, who have first-hand knowledge of the onset and/or recurrence of his psychiatric symptoms during and/or since service. He should be provided an appropriate amount of time to submit this lay evidence. 4. After completing the above, schedule the Veteran for a VA examination. The claims file should be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should: a). Identify all psychiatric disabilities found to be present; b) Opine as to whether it is at least as likely as not that any current psychiatric disability had its onset during service; or within one year of service discharge (i.e., by August 1998); or is otherwise etiologically related to the Veteran's service. The examiner should acknowledge the competent and credible lay evidence regarding the onset of the Veteran's psychiatric problems and the reported recurrence of these problems since service in relation to his current diagnosis(es). A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Then readjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 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). _________________________________________________ STEVEN D. REISS 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) (2013).