Citation Nr: 1715228 Decision Date: 05/05/17 Archive Date: 05/11/17 DOCKET NO. 09-08 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia. ATTORNEY FOR THE BOARD Jason George, Associate Counsel INTRODUCTION The Veteran had verified active military service from August 1973 to December 1973 and from March 1974 to May 1975. He had additional active service from June 1976 to October 1977; however, a July 2016 administrative decision, VA found that this last period of service is dishonorable for VA purposes. As such, no compensation based on such service is payable. See 38 C.F.R. § 3.12 (2016). This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, in which the Veteran's application to reopen his previously denied claim for service connection for schizophrenia was denied. In December 2010, the Board reopened the claim for service connection for paranoid schizophrenia and remanded the claim for service connection for an acquired psychiatric disorder for additional development. The case now returns for further appellate review. With regard to the Veteran's representation, there was an indication in the record that the Veteran had authorized The American Legion to represent him. However, the December 2014 VA Form 21-22, Appointment of Veterans Service Organization as Claimant Representative, was not properly executed. The Board sought clarification from The American Legion, which noted that they were not authorized to represent the Veteran on the basis of the December 2014 VA Form 21-22. Thereafter, the Board contacted the Veteran to seek clarification of his desire to be represented before the Board. In March 2017, the Veteran elected to proceed pro se. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Pursuant to the December 2010 remand, in January 2011, the Veteran was afforded a VA examination, and a medical opinion regarding whether any diagnosed psychiatric disorder was related to service was obtained. The examiner opined that the Veteran's psychological disorder, diagnosed as schizophrenia, paranoid type, was at least as likely as not a result of service-connected experiences which resulted in symptoms of psychopathology during his third year of service, by which the Board believes the examiner is referring to his third period of service (June 1976 to October 1977), during which the Veteran was prescribed Thorazine. However, laws and regulations prevent VA from service-connecting the Veteran for disabilities that had their onset during this period of service as his discharge has been characterized as dishonorable. See 38 C.F.R. § 3.12. However, with regard to whether the Veteran's acquired psychiatric disorder is related to either of his two earlier periods of service, the examiner's discussion of whether there was an earlier onset of a psychological disorder is vague and thus inadequate for resolving the claim. The examiner noted that the Veteran was in the Florida State Hospital for schizophrenia and that his mother was institutionalized at mental health facilities through most of the Veteran's life, but did not reach a clear conclusion as to whether the currently diagnosed schizophrenia was related to service or manifested within one year of his service discharge from his first or second period of service in December 1973 or May 1975, respectively. Thus, a remand to obtain a new nexus opinion is necessary. Further, the Board finds that medical records from Florida State Hospital that remain outstanding. In this regard, there are indications in the record that the Veteran's psychological symptoms began at as early as 1975, as he reports that the onset of auditory hallucinations, delusions, and paranoia began at age 18 or 19. The Veteran also reported he was first diagnosed with paranoid schizophrenia in 1975 shortly after he was discharged from the Army. Given the examiner's report indicating that the Veteran was treated at Florida State Hospital shortly after discharge from service in December 1973, it is likely that records from Florida State Hospital would likely show the onset of symptoms and would assist an examiner on remand in forming a nexus opinion as to whether the Veteran's schizophrenia is related to the periods of service from August 1973 to December 1973 or March 1974 and May 1975. However, medical records from Florida State Hospital in Chattahoochee, Florida have not been requested. Rather, VA has made two requests for treatment records from North Florida Treatment and Evaluation Center in Gainesville, Florida, where the Veteran was treated in 1978. It appears that, while these two treatment centers are part of the same network of mental health, they are different facilities. Further there is an indication in the record that the Veteran was treated as the Northeast Florida State Hospital in Macclenny, Florida in 1977, from which records have not yet been requested. Thus, the AOJ should obtain such records on remand as well as updated VA treatment records. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal, other than those already associated with the Veteran's claims file, to include records from Florida State Hospital and Northeast Florida State Hospital. After obtaining any necessary authorization from the Veteran, obtain all outstanding records, to include treatment records from Florida State Hospital in Chattahoochee, Florida, and Northeast Florida State Hospital in Macclenny, Florida, as well updated VA treatment records dated from July 2009 to present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, 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. After obtaining any outstanding records, return the record to the VA examiner who conducted the January 2011 psychiatric examination or, if unavailable, another appropriate VA examiner. The need for a new examination is left to the discretion of the examiner offering the addendum opinion. The record and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The examiner should offer an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's acquired psychiatric disorder, diagnosed as schizophrenia, paranoid type, is related to the his military service from August 1973 to December 1973, or March 1974 to May 1975. The examiner is advised that the Veteran's third period of service from June 1976 to October 1977 is considered dishonorable for VA purposes. The examiner should also indicate whether a psychosis, which includes schizophrenia, manifested within one year of his separation from service in December 1973 and/or May 1975 (i.e., by December 1974 and/or May 1976), and, if so, please describe the manifestations of such psychosis. In offering any opinion, the examiner must consider the full record, especially reports that the Veteran was hospitalized at Florida State Hospital in the 1970s and other reports that the Veteran's hallucinations and other psychiatric symptoms began in the 1970s, as well as the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. 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 claim should be readjudicated based on the entirety of the evidence. If the claim 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). 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 C.F.R. §§ 5109B, 7112 (West 2014). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).