Citation Nr: 1330895 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 03-34 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1969 to September 1970. A review of the Veteran's Virtual VA claims file shows that the Appellant was appointed his fiduciary for purposes of disbursement of VA disability compensation in August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied, in pertinent part, the Veteran's claim of service connection for an acquired psychiatric disability other than PTSD, to include schizophrenia. The Veteran disagreed with this decision in June 2003. He perfected a timely appeal in October 2003 and requested a Travel Board hearing. In an October 2008 rating decision, the RO found the Veteran to be not competent for purposes of disbursement of VA disability compensation. The Veteran failed to report for his Travel Board hearing when it was scheduled in March 2009. The Board subsequently denied this claim in a June 2009 decision. The Veteran filed a motion for reconsideration of the Board's June 2009 decision in September 2009, arguing that he had not been notified of his March 2009 Travel Board hearing because the hearing notification letter had been sent to an incorrect mailing address. The Board vacated its June 2009 decision in an Order issued in November 2010 and remanded this appeal for another Travel Board hearing. The Board subsequently granted the Veteran's motion for reconsideration in December 2010 and notified him that the June 2009 Board decision had been vacated. The Veteran failed to report for his rescheduled Travel Board hearing at the RO in December 2011. Thus, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). In February 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In November 2012, the RO granted a claim of service connection for PTSD assigning a 70 percent rating effective April 19, 2012. Thus, the issue on appeal is as stated on the title page of this decision. The issue of entitlement to an effective date earlier than April 19, 2012, for the grant of service connection for PTSD has been raised by a review of the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) (in this case, the RO). The Veteran filed this claim in February 2013 correspondence. To date, however, the RO has not taken any action on this claim. Because the Board does not have jurisdiction over this claim, it is referred to the RO/AMC for appropriate action. Unfortunately, and although the Board is aware of the additional delay that may be caused by this REMAND, the appeal is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred an acquired psychiatric disability other than PTSD, to include schizophrenia, during active service. He specifically contends that he was experiencing mental health problems at the time of his hardship discharge from active service in September 1970. He also specifically contends that photocopies of letters in his claims file from his mother and L.H. dated in August 1970 just prior to his discharge were not included in his original hardship discharge paperwork and questions the validity of these statements. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claim can be adjudicated. In its most recent remand in February 2012, the Board directed that the RO/AMC "verify whether the photocopied statements dated in August 1970 were a part of the Veteran's service personnel records." The RO/AMC also was directed to determine whether the letters dated in 1970 "are not genuine. This determination should be conveyed to the VA examiner." See Board remand dated February 27, 2012, at pp. 22. The RO/AMC finally was directed to schedule the Veteran for appropriate VA examination to determine the nature and etiology of his acquired psychiatric disability other than PTSD, to include schizophrenia. The VA examiner specifically was asked "whether there was any medical reason to accept or reject the proposition that the Veteran had family and financial problems during service" which could have caused or contributed to his current acquired psychiatric disability other than PTSD, to include schizophrenia. This examiner also was asked to comment on the August 1970 letters in the claims file. Id., at pp. 22-23. Having reviewed the record, the Board concludes that the development requested in its February 2012 remand is incomplete. It appears that the RO requested the Veteran's service personnel records in March 2012 and these records were associated with the Veteran's claims file later that same month. It also appears that, in a VA Examination Request form dated in April 2012, the RO requested a mental disorders examination for the Veteran and noted that the VA examiner should "review the letters of 1970, purportedly submitted to military authorities in support of the Veteran's request for a hardship discharge." The RO also requested that the VA examiner answer the question posed by the Board in its February 2012 remand concerning "whether there was any medical reason to accept or reject the proposition that the Veteran had family and financial problems during service" which could have caused or contributed to his current acquired psychiatric disability other than PTSD, to include schizophrenia. It is not clear to the Board if the RO verified whether the August 1970 letters were part of the Veteran's service personnel records. (The Board notes parenthetically that its own review of the Veteran's claims file indicates that these letters were included in his service personnel records.) It also is not clear to the Board if the RO determined if the August 1970 letters were not genuine before scheduling the Veteran for appropriate VA examination or if any such determination was conveyed to the VA examiner prior to this examination. Thus, on remand, the RO is asked to verify whether the August 1970 letters in the claims file were part of the Veteran's service personnel records, to determine whether these letters are genuine, and to provide any such determination to the VA examiner. A review of the Veteran's April 2012 VA Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire (DBQ) indicates that the VA examiner did not review or comment on the August 1970 letters of record in the claims file. It is not clear if these letters were provided to her as they are not referenced in the examination report. Nor did the April 2012 VA examiner answer the question posed by the Board in its February 2012 remand concerning "whether there was any medical reason to accept or reject the proposition that the Veteran had family and financial problems during service" which could have caused or contributed to his current acquired psychiatric disability other than PTSD, to include schizophrenia. Thus, on remand, this examination report should be returned to the VA examiner who completed it in order for her to provide an addendum in which she states whether she reviewed the August 1970 letters, answers the question of "whether there was any medical reason to accept or reject the proposition that the Veteran had family and financial problems during service" which could have caused or contributed to his current acquired psychiatric disability other than PTSD, to include schizophrenia, and states whether her April 2012 opinion concerning the etiology of this disability has changed. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO/AMC to re-certify this appeal to the Board in July 2013 without complying with the February 2012 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Determine whether the photocopied statements dated in August 1970 from the Veteran, his mother, and J.H. were included in his service personnel records. Determine whether these letters, purportedly submitted to military authorities in support of the Veteran's request for a hardship discharge, are not genuine. A copy of any formal finding on these matters should be included in the Veteran's claims file. Any RO determination as to the authenticity of the August 1970 letters also should be communicated to the VA examiner (as outlined below). 2. Thereafter, contact the VA Medical Center in Montgomery, Alabama, and request that the VA examiner who completed the Veteran's April 19, 2012, VA Mental Disorders (other than PTSD and Eating Disorders) DBQ provide an addendum to this examination report. The claims file and a copy of this remand should be forwarded to this examiner for review. Any RO determination as to the authenticity of the August 1970 letters in the Veteran's claims file should be communicated to the VA examiner. In her addendum to the April 2012 examination report, this VA examiner should state whether she reviewed letters dated in August 1970 from the Veteran, his mother, and J.H. concerning the reasons for his request for a hardship discharge from active service. This examiner also should state whether there was any medical reason to accept or reject the proposition that the Veteran had family and financial problems during service which could have caused or contributed to his current acquired psychiatric disability other than PTSD, to include schizophrenia. The examiner finally should state whether her April 2012 opinion concerning the etiology of the Veteran's acquired psychiatric disability other than PTSD, to include schizophrenia, has changed. A complete rationale must be provided for any opinions expressed. The examiner is advised again that the Veteran contends that he incurred an acquired psychiatric disability other than PTSD, to include schizophrenia, during active service. He specifically contends that family and financial problems experienced in August 1970 just prior to his request for a hardship discharge from active service caused or contributed to his current acquired psychiatric disability other than PTSD, to include schizophrenia. 3. If, and only if, the VA examiner who conducted the Veteran's April 19, 2012, VA Mental Disorders (other than PTSD and Eating Disorders) DBQ is not available, then schedule the Veteran for updated examination to determine the nature and etiology of his acquired psychiatric disability other than PTSD, to include schizophrenia. The claims file and a copy of this remand must be provided to the examiner for review. Any RO determination as to the authenticity of the August 1970 letters in the Veteran's claims file should be communicated to the VA examiner. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should identify any acquired psychiatric disability other than PTSD, to include schizophrenia, currently experienced by the Veteran, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability other than PTSD, to include schizophrenia, if diagnosed, is related to active service or any incident of service. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that he incurred an acquired psychiatric disability other than PTSD, to include schizophrenia, during active service. He specifically contends that family and financial problems experienced in August 1970 just prior to his request for a hardship discharge from active service caused or contributed to his current acquired psychiatric disability other than PTSD, to include schizophrenia. 4. The Veteran should be given notice of the requested examination, if scheduled, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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).