Citation Nr: 1340074 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-30 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and R .L .W. ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO declined to reopen a previously denied claim for service connection for paranoid schizophrenia. The Veteran appealed this rating action to the Board. In July 2012, the Veteran and his brother, R. L. W., testified before the undersigned at the Atlanta, Georgia RO in support of his claim. A copy of the hearing transcript is of record. The Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court found that the Board had erred in not considering the scope of the Veteran's claim for service connection for post traumatic stress disorder (PTSD) as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record (in that case, diagnoses of chronic PTSD and depression). Here, the evidence of record does not show that the Veteran has ever been diagnosed with a psychiatric disability other than schizophrenia. However, to the extent the Veteran may carry diagnoses of other psychiatric disorders, the broad characterization of the issue as stated in the title page is consistent with Clemons. In February 2013, the Board remanded the claim for additional substantive and procedural development. The matter has returned to the Board for further appellate consideration. he 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 Board finds that it must remand the claim on appeal for additional procedural development. Accordingly, further appellate consideration will be deferred and the issue is remanded to the RO for action, as described in the directive outlined in the indented paragraph below. The Veteran is represented by the Georgia Department of Veterans Services (GDVS). The record does not contain a VA Form 646 or any other indication that the claims file was reviewed by GDVS prior to the Veteran's appeal being recertified to the Board in October 2013. The VA Manual indicates that a Form 646 is not required for remanded appeals when new evidence is not submitted or the appeal was remanded by the Board solely for the assembly of medical records. See VA Adjudication Manual M21-1 MR, Part I, Chapter 5, Section F, § 28(c) (December 9, 2004). In this case, however, a Form 646 is required because additional medical evidence consisting of treatment reports, dated from 1989 to 2007, from the Dublin, Georgia VA Medical Center (VAMC) and reports, dated in February 1981, prepared by Central State Hospital, were added to the record pursuant to the Board's February 2013 remand directives. These reports show, in pertinent part, that the Veteran had been initially hospitalized for schizophrenia in February 1981, and that he had continued to seek psychiatric treatment from that time forward. In addition, the Board's February 2013 remand instructions were not limited to the procurement of medical records. In its February 2013 remand directives, the Board also requested that the RO issue a duty to notify and assist letter in compliance with the Veterans Claims Assistance Act (VCAA) correctly identifying the last final denial of the claim for service connection for schizophrenia (i.e., the RO's July 20, 2000 decision letter). The RO issued this letter to the Veteran in March 2013. Furthermore, the RO reconsidered the additional evidence in Supplemental Statement of the Case issued in September 2013. (Parenthetically, the Board observes that the Veteran's representative submitted a VA Form 646 in June 2010 in response to the RO's request early that month. (See Report of Contact, dated in mid-June 2010). The Veteran is entitled to representation at all stages of an appeal. 38 C.F.R. § 20.600 (2013). The United States Court of Appeals for the Federal Circuit has recently held that veterans have a property interest in VA benefits and constitutionally protected due process rights in the claims adjudication process. Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009). Therefore, the Veteran's representative, GDVS, should have an opportunity to review the new evidence added to the record and provide argument in response to the continued denial of the claim on appeal. Accordingly, the case is REMANDED for the following action: Afford the Veteran's representative, Georgia Department of Veterans Services, an opportunity to review the claims files and submit a completed VA Form 646 or equivalent written argument on whether new and material evidence has been received to reopen a previously denied claim for service connection for schizophrenia. If the representative cannot be contacted, the Veteran should be so notified to ensure that his due process rights are protected. 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 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). _________________________________________________ JONATHAN B. KRAMER 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).