Citation Nr: 1335567 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-36 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a schizophrenic reaction, undifferentiated type, competent. REPRESENTATION Appellant represented by: Kathy Lieberman, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service in the Air Force from June 1968 until October 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico In May 2010, the Board denied a claim for service connection for posttraumatic stress disorder, reopened the claim for service connection for a schizophrenic reaction, undifferentiated type, competent, and remanded the claim for service connection for a schizophrenic reaction, undifferentiated type, competent, for further development. In January 2012, the Board denied the Veteran's claim for service connection for a schizophrenic reaction, undifferentiated type, competent. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court granted a February 2013 Joint Motion for Remand (JMR), which vacated the January 2012 Board decision and remanded the claim for additional consideration. Case law mandates that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Although this appeal involves a mental disability, the Board has not recharacterized the issue of entitlement to service connection for a schizophrenic reaction, undifferentiated type, competent, to the broader issue of entitlement of service connection for a psychiatric disability, because in connection with the current appeal, the Board previously denied a claim for service connection for PTSD, and no other mental diagnoses are currently of record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the February 2013 JMR, the parties noted that a VA examiner in June 2010 indicated that she reviewed the claims file and electronic VA records. The examiner was reported to have noted that the Veteran "is under medical treatment at the San Juan VAMC" and that she had reviewed a psychiatric evaluation dated in January 2010 with no mental condition. The parties agreed "that the Board's statement of reasons or bases is inadequate because it did not discuss, in the context of the duty to assist, whether VA was required to procure treatment records from San Juan VAMC that included a psychiatric examination." The parties agreed that VA should determine whether these VA medical records are potentially relevant to the claim and, if so, attempt to procure the records. The Board notes that the Veteran has reported that he was treated at Julia Hospital and by a private psychiatrist. The claims file reveals a statement dated in August 2007 from a private psychiatrist (Dr. N.R.N.). Records regarding the Veteran's reported treatment at Julia Hospital or from a private psychiatrist have not been associated with the claims file. The Board notes that VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2013). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts must be made to obtain all VA treatment records regarding the Veteran, including the identified January 2010 psychiatric evaluation. In addition, after obtaining adequate authorization, attempt to obtain and associate with the claims file treatment records regarding the Veteran from Julia Hospital and Dr. N.R.N. Service treatment records reveal that the Veteran was not diagnosed with any psychiatric disorder upon examination at entrance to active service. The Veteran was subsequently noted to be diagnosed with schizophrenic reaction, undifferentiated type, chronic, improved, on a Report of Medical Examination for a Medical Board. The Veteran's service personnel records reveal that the Veteran was separated from service for a physical disability that existed prior to service. A VA medical record dated in March 1970 indicates that the Veteran was hallucinating in both the auditory and visual fields. He was inappropriate and bizarre of behavior as well as grandiose. He had no insight and judgment was poor. The Veteran was diagnosed with schizophrenic reaction, paranoid type. Post-service treatment records during the period on appeal do not reveal a diagnosis of schizophrenia. In June 2010 the Veteran was afforded a VA medical examination. The examiner specifically commented on the Veteran's service and immediate post-service treatment records including treatment at "Clinica Julia". After examination, the Veteran was found to have no Axis I or II diagnosis and the Veteran was not found to have a mental condition. The examiner reported that it was noteworthy to mention that psychotic symptoms that last less than one month are considered as a brief reactive psychosis in modern psychiatric nomenclature, as per DSM-IV criteria, and that the Veteran's symptoms had also been described as nervousness since induction into the Air Force. The examiner stated that her opinion was also supported by the Veteran's denial of any symptomatology suggestive of organic disease on a medical examination for disability evaluation in April 1969. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates both that the disease or injury existed before acceptance and enrollment, and that it was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002); see also, Wagner v. Principi, 370 F.3d 1089 (Fed. Cir., 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013); Green v. Derwinski, 1 Vet. App. 320 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Importantly, the clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). The Board notes that VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2013); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, as the remand requests the association with the claims file of additional VA treatment records, the Veteran must be afforded another VA medical examination taking into consideration all new evidence associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain complete VA treatment records pertaining to the Veteran, including the January 2010 VA psychiatric evaluation. 2. After obtaining any necessary authorization from the Veteran, attempt to obtain and associate with the claims file all treatment records regarding the Veteran from Dr. N.R.N. 3. Contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all private health care providers who may possess additional records pertinent to his claim. After obtaining any necessary authorizations from the appellant, attempt to obtain and associate with the claims folder any medical records identified by the Veteran. 4. After completion of the foregoing, afford the Veteran another VA medical examination regarding his claim for service connection for schizophrenic reaction. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. The examiner should respond to the following questions: (a) Does the Veteran have a current diagnosis of schizophrenic reaction? (b) If the answer to (a) is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran had a schizophrenic reaction that existed prior to his entry onto active duty? (c) If the answer to (b) is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the preexisting schizophrenic reaction was not aggravated by service or that any increase in disability was due to the natural progression of the disease? (d) If the Veteran is diagnosed with a psychiatric disorder other than schizophrenic reaction and PTSD, is the Veteran's psychiatric disorder at least as likely as not incurred in or related to the Veteran's active service? Please identify any evidence relied upon with specificity. The examiner must provide a complete rationale for all conclusions reached. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Following the above, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative afforded an opportunity to respond. Then, the case should be returned to the Board for appellate review. 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 MARTIN 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).