Citation Nr: 1753571 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-23 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia. 2. Whether the Veteran is competent to manage his Department of Veterans Affairs benefit payments. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on a period of active duty for training (ACDUTRA) from August 1987 to February 1988 and on active duty from February 1991 to July 1991, with additional service in the Marine Corps Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. An October 2011 rating decision denied entitlement to service connection for paranoid schizophrenia. The Veteran filed a Notice of Disagreement (NOD) in March 2012. The RO issued a Statement of the Case (SOC) in June 2013. In August 2013, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of that issue. An August 2014 rating decision determined that the Veteran was not competent to handle disbursement of funds. The Veteran filed a NOD in December 2014. The Veteran has not been issued a Statement of the Case (SOC) in response to the NOD. Accordingly, the Board must remand this issue, rather than merely refer it. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the RO. A copy of the hearing transcript has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issues on appeal. Outstanding Records The record indicates that there may be Social Security Administration (SSA) records not associated with the claims file. The claims file contains an October 2010 SSA inquiry indicating that the Veteran was not in receipt of any SSA benefits at that time. However, an April 2012 SSA inquiry shows that the Veteran had a denied claim, and an August 2014 SSA inquiry shows that the Veteran was in receipt of SSA disability benefits. There is no indication in the claims file that SSA records have been requested or obtained. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits"). This duty extends to obtaining a copy of the SSA decision awarding or denying benefits. Murincsak v. Derwinski, 2 Vet. App. 363, 371 (1992); Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996). Because SSA records are potentially relevant to the Board's determination in this case, VA must attempt to obtain and consider those records. Therefore, on remand, the Veteran's complete SSA records should be obtained. The record also suggests that there may be relevant VA treatment records that have not been associated with the claims file. In this regard, the Veteran testified at the August 2017 hearing that he started receiving VA treatment in 2010, but the earliest VA treatment records in the claims file date from July 2012. Accordingly, upon remand, the AOJ should obtain and associate with the claims file all outstanding VA treatment records. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). Additionally, as the record indicates that the Veteran receives ongoing mental health treatment, any current VA treatment records dated from August 2017 to the present should be obtained on remand. The Board also notes that there may be pertinent service treatment records not associated with the claims file. Specifically, a December 1993 Reserve service treatment record reflects that the Veteran was referred to mental health for evaluation of fitness for duty in the Marine Corps Reserves. There are no further in-service mental health records associated with the claims file, nor does it appear that any record searches have been made by the RO. In the October 2011 rating decision, the RO acknowledged the December 1993 mental health evaluation referral, but stated that "[t]his evaluation did not happen and you were discharged from the Marine Corp [sic] Reserves." The Board finds that this statement is less than accurate because personnel records show that the Veteran was not discharged from the Marine Corps Reserves until February 1995, over a year after the mental health referral. The Board notes that in-service mental health records are sometimes stored at the National Personnel Records Center (NPRC) separately from a Veteran's other service treatment records. In light of the foregoing, a remand is required for the purpose of obtaining any such separately stored records which may exist. Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder, currently diagnosed as paranoid schizophrenia, had its onset during his second period of active service from February 1991 to July 1991. See August 2017 Hearing Testimony; August 2013 VA Form 9; September 2011 VA Form 21-527; September 2011 VA Examination Report. Specifically, the Veteran asserts that he first started having symptoms of paranoid schizophrenia, such as hallucinations and delusions, during this period of service. See August 2017 Hearing Testimony. He also testified that he had behavioral problems during this period, due to feeling threatened by others in his unit. Service treatment records reflect that the Veteran reported possible depression or excessive worry during a December 1992 periodic examination. On a January 1993 dental treatment questionnaire, the Veteran reported difficulty sleeping. A December 1993 service treatment record shows that the Veteran was referred for a psychological evaluation/counseling due to "some behavior problems in the unit, around peers and seniors." On examination, he was agitated, semi-confused, and unfocused. When questioned about certain events, he replied with "long puzzled-analogy type answers." He was assessed as having "possible paranoid personality and antisocial behavior," and he was referred to the mental health department for evaluation for fitness for duty in the Marine Corps Reserves. Post-service treatment records show that the Veteran as diagnosed with rule-out schizophrenia, paranoid type, in 1998. More recent VA treatment records show a current diagnosis of paranoid schizophrenia. The Veteran was afforded a VA mental disorders examination in September 2011 in connection with his non-service connected pension claim. The Veteran reported receiving outpatient mental health treatment since 1991. He was diagnosed with paranoid schizophrenia. The examiner offered opinions as to the Veteran's functional limitations due to paranoid schizophrenia; however, the examiner was not asked, and did not proffer, an etiology opinion. Given the lay contentions discussed above and the VA treatment records which contain a current diagnosis, the Board finds that a new VA examination with etiology opinion is required upon remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Competency As noted in the introduction, in an August 2014 rating decision, the RO found that the Veteran was not competent to handle disbursement of funds for VA purposes. In a December 2014 statement, the Veteran indicated that he disagreed with that determination. Although not on an official "Notice of Disagreement" form, the Board notes that the Veteran's submission predates the effective date of the revised regulations and further finds that his statement meets the requirements to serve as a valid NOD to the August 2014 rating decision. See 38 C.F.R. § 20.201; 79 Fed. Reg. 57698 (explaining that the revised regulation requiring a NOD be on a standardized form is effective March 24, 2015). The AOJ, however, has not issued the Veteran a statement of the case with respect to this issue, and there is no further indication from the claims file that the AOJ acknowledged the Veteran's timely NOD. Where a notice of disagreement has been timely filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the Board finds that a remand is necessary for the issuance of an SOC on the issue of whether the Veteran is competent to handle disbursement of funds for VA purposes. See 38 C.F.R. § 20.201, 20.300-301; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with a statement of the case regarding the issue of whether the Veteran is competent to handle disbursement of funds for VA purposes. Advise them of the time period in which to perfect the appeal. If the Veteran perfects his appeal of these issues in a timely fashion, then return the case to the Board for its review, as appropriate. 2. Obtain and associate with the Veteran's claims file all outstanding VA treatment records dated from 2010 to the present. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private records pertinent to his appeal. 3. Request from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 4. Attempt to obtain any outstanding service mental health records from the National Personnel Records Center. The Board again notes that service mental health records are sometimes stored separately from other service medical records, and a specific request should be made for such separately stored records. All efforts should be made to obtain such records. If any records cannot be obtained after 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). 5. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine whether the Veteran's acquired psychiatric disorder is related to service. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All necessary studies should be performed, and all findings should be reported in detail. After examining the Veteran and reviewing the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed acquired psychiatric disorder, to specifically include paranoid schizophrenia, had its onset in or is otherwise related to the Veteran's 1991 period of active military service, or had an onset within one year after the Veteran's discharge in July 1991. When providing these opinions, the examiner should consider and discuss the Veteran's service treatment records, service personnel records, post-service treatment records, the Veteran's lay statements regarding symptoms in service, and any other relevant information. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. After completing the foregoing, and any additional actions deemed warranted, the AOJ should readjudicate the claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ TANYA SMITH 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).