Citation Nr: 1336031 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-04 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, undifferentiated type. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from November 1970 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana which denied the Veteran's request to reopen a claim for service connection for schizophrenia, undifferentiated type, as well as a claim for TDIU. The Board notes that a January 2008 rating decision had previously denied the Veteran's claim for service connection for schizophrenia. However, applicable regulations provide that when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2013). As such, new and material evidence is not needed to reopen a previously denied claim when relevant new evidence is received prior to the expiration of the appeal period. Rather, the claim is simply reviewed on a de novo basis. In the instant case, the Veteran submitted additional evidence pertinent to his claim for service connection for an acquired psychiatric disorder in September 2008, which included letters he sent home during military service and lay statements from his family members detailing his behavior during and since service, and in November 2008, which included a medical opinion from Dr. Post, prior to the expiration of the appeal period of the January 2008 rating decision. Therefore, as the evidence received within one year of the issuance of the January2008 rating decision, it falls under the scope of 38 C.F.R. § 3.156(b) and, as such, the Board will consider the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder on a de novo basis. Additionally, while the RO characterized the issue as entitlement to service connection for schizophrenia, undifferentiated type, the Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, undifferentiated type. In August 2012, the Veteran and his sister testified before the undersigned Veterans Law Judge sitting at the RO. A hearing transcript has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the claims on appeal. 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 With respect to the issues on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). First, the Board finds that a remand is necessary in order to obtain outstanding Social Security Administration (SSA) records. An August 1999 notice indicated that the Veteran received Social Security Disability Insurance (SSDI) benefits. The Veteran testified that he was awarded benefits due to his schizophrenia. The Court has held that where there has been a determination with regard to Social Security benefits, the records concerning that decision must be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). While the RO appears to have attempted to verify the receipt of such benefits, documentation in the claims file reflects that no Title II or Title IX data found. However, the RO did not notify the Veteran of the unavailability of such records. Therefore, on remand, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the agency of original jurisdiction (AOJ) should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. Additionally, the Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Pertaining to the Veteran's service connection claim, the Board finds that a VA examination is necessary in order to determine the nature and etiology of his claimed acquired psychiatric disorder. In this regard, the Veteran has alleged that his psychiatric disorder began during service. The Veteran and his sister testified as to the Veteran's symptoms immediately following service. In addition, numerous lay statements from the Veteran's family members detailing his behavior during and since service are of record. The Veteran's sister also alleged that letters written by the Veteran during service, which are of record, demonstrated the onset of his psychiatric symptoms. Furthermore, in a November 2008 statement, Dr. Post noted that the Veteran was diagnosed with schizophrenia in September 1998. It was observed that he manifested no sign of such disorder prior to his induction into the Army at age 19. Dr. Post stated that it was unclear whether it was the stress of military life in general which brought about the disorder, or if there was an event or events while service in Germany that triggered the Veteran's schizophrenic break. He further indicated that it was clear that the Veteran was on active duty during the period when schizophrenia usually manifests itself and he left the Army a totally different man. In support of such statement, Dr. Post noted the Veteran's family members' observations regarding his behavior changes. Dr. Post concluded that it was his opinion that the Veteran's disorder was not a pre-existing condition, and that it was aggravated by his military service as manifested by personality changes, social withdrawal, anxiety, and overall deterioration of his ability to function in society after his discharge. Therefore, in light of the Veteran's and his family members' statements detailing behavior changes during and since military service and Dr. Post's opinion, the Board finds that the Veteran should be afforded a VA examination so as to determine the current nature and etiology of his acquired psychiatric disorder. The Board further notes that, at his Board hearing, the Veteran detailed psychiatric treatment over the years by various physicians, to include Dr. Goscuico, Dr. Lord, Leesville Mental Health, Dr. Post, and through the VA facility in Alexandria, Louisiana. While the Veteran and his sister indicated that all available records had been sent to VA, while on remand, he should be given another opportunity to identify any VA or non-VA healthcare provider who has treated him since service for his acquired psychiatric disorder. Furthermore, with respect to the Veteran's VA treatment, he and his sister indicated at his Board hearing that he began seeking treatment through VA in the late 1980's/1990's. Records dated from November 2001 to December 2008 are of record. Therefore, all identified treatment records, to include those from the Alexandria VA facility dated from the late 1980's to November 2001 and from December 2008 to the present, should be obtained for consideration in the Veteran's appeal. In addition, the TDIU claim is "inextricably intertwined" with the Veteran's claim for service connection for an acquired psychiatric disorder, particularly since the determination of whether this disability is service-connected may potentially affect his entitlement to a TDIU. Claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one of the claims cannot be rendered until a decision on the other. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, consideration of the Veteran's TDIU claim is deferred pending the outcome of his service connection claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his acquired psychiatric disorder. After securing any necessary authorization from him, obtain all identified treatment records, to include those from the Alexandria VA facility dated from the late 1980's to November 2001 and from December 2008 to the present which are not already of record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. For each diagnosed acquired psychiatric disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service. The examiner should also offer an opinion as to whether the Veteran manifested a psychosis (defined as a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder, not otherwise specified (NOS); schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder) within one year of his July 1972 service discharge and, if so, to describe the manifestations. The examiner should specifically consider the contentions of the Veteran and his family members regarding the in-service onset of his symptoms. In addition, the examiner should consider the contention that the Veteran's in-service letters to his family documented the onset of psychiatric symptoms, and Dr. Post's November 2008 opinion. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims 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). _________________________________________________ A. JAEGER 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).