93 Decision Citation: BVA 93-15206 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-46 437 ) DATE ) ) ) THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for psychiatric disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for ulcer disease. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for back disability. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for shoulder disability. 5. Entitlement to service connection for heart disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Associate Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The veteran served on active duty from May 1971 to May 1973. In a September 1990 rating decision the RO denied service connection for heart disability and determined that new and material evidence has not been submitted to reopen previously denied claims for service connection for back disability and shoulder disability. In a November 1990 rating decision, the RO confirmed and continued those decisions and determined that new and material evidence had not been submitted to reopen claims for service connection for ulcer disease and psychiatric disability. The veteran's notice of disagreement with the September 1990 rating decision was received in December 1990, and in February 1991 the RO issued a statement of the case on the issues of service connection for heart disability and whether new and material evidence has been submitted to reopen claims of service connection for back disability and shoulder disability. The veteran testified at a hearing at the RO in March 1991. The hearing officer accepted the veteran's testimony as his substantive appeal on the issues of service connection for heart disability and whether new and material evidence has been submitted to reopen claims of service connection for back disability and shoulder disability. The hearing officer also accepted the veteran's hearing testimony as his notice of disagreement on the issues of whether new and material evidence has been submitted to reopen claims of service connection for ulcer disease and psychiatric disability. The hearing officer's decision was issued in May 1991, and in June 1991 the RO issued a supplemental statement of the case addressing all the issues. In written argument received in September 1991, the veteran's representative, Disabled American Veterans, perfected the veteran's appeal on the issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for ulcer disease and psychiatric disability and continued the veteran's appeals on the other issues. The case was received and docketed at the Board in October 1991. The veteran's representative submitted additional written argument in March 1992. REMAND In a March 1976 rating decision, the RO in Detroit, Michigan, denied service connection for schizophrenia on the basis that there was no evidence of a psychosis in service or within a year after the veteran's separation from service. The veteran did not appeal that decision. Review of the claims file shows that in his original claim the veteran stated that he had received psychiatric treatment at the U.S. Army Hospital at Fort Ord, California, in March 1972. In a statement received in August 1987 the veteran again reported that he had received treatment at the mental hygiene clinic at Fort Ord in 1972. Also, in sworn testimony at the March 1991 hearing, the veteran stated that while off base in December 1972 he had been arrested for slapping a woman. He indicated that he was then seen at a service mental hygiene clinic and let the examiner know that he was hearing voices and had "lost his mind." He indicated that at a civilian trial he had been found not guilty and that a witness had testified that he had seen the veteran walking in a trance, "like a robot." The claims file includes an April 1991 statement from the Monterey County Municipal Court of the State of California reporting that a trial had been held in 1973 in a case brought by the State against the veteran, but that because of the age of the case, the court file had been destroyed. Here, the veteran in his testimony has alleged facts that, if substantiated, would result in a compensable claim, thus making his claim with respect to his psychiatric disability well grounded. White v. Derwinski, 1 Vet.App. 519, 521 (1991). VA, therefore, has a duty to assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991); Ivey v. Derwinski, 2 Vet.App. 320, 322 (1992). In response to a September 1987 RO request to the Commander, Mental Hygiene Clinic, Hays Army Hospital, Fort Ord, California, the Chief, Community Mental Health, Headquarters U.S. Army Medical Department, Fort Ord, reported that any medical records for the veteran had been retired to the National Personnel Records Center (NPRC). The RO requested NPRC to provide records of hospital treatment of the veteran in 1972 and stated that the condition requiring treatment was nerves. In its November 1987 reply, NPRC reported that, "[a] clinical record search was made at [sic] the 1972 and 1973 U.S. Army Hospital, Ft. Ord, CA[,] but no records were found for [the veteran]." We note that the VA Adjudication Procedure Manual, Manual M21-1 (hereinafter Manual M21-1) includes provisions for requesting records for veterans from various sources. Part III, Chapter 4, paragraph 4.08 of Manual M21-1 indicates that requests for records from NPRC should distinguish between "clinical records" and "mental hygiene records". Available information from the RO's request and the NPRC reply outlined above suggest that this was not done. In view of the unavailability of court records referred to by the veteran, and the limited extent of available service medical records (which consist of a May 1971 record from an optometry clinic, a June 1971 dispensary entry, a March 1972 drug screening profile, and an April 1973 separation physical examination report), we are of the opinion that VA's duty to assist the veteran requires that a further, more specific, request be made to the NPRC for a search for mental hygiene records dated in 1972 or 1973 from the U.S. Army Hospital, Fort Ord, California. See Dixon v. Derwinski, 3 Vet.App. 261 (1992). Also, there is no indication that the veteran has been informed that with respect to his psychiatric disability claim that he might ask fellow soldiers or others to write letters in support of his claim. This should be done. See Smith v. Derwinski, 2 Vet.App. 147,148 (1992); Cartright v. Derwinski, 2 Vet.App. 24 (1991). The veteran should be reminded that he may also submit additional evidence with respect to any of his claims. The claims file includes a copy of a February 1986 decision of the Social Security Administration awarding the veteran disability benefits because of his severe chronic undifferentiated schizophrenia. The record upon which that award was based could be pertinent to the veteran's claim and should be obtained. By submission of the February 1986 Social Security Administration decision the veteran may have raised a claim of entitlement to a permanent and total disability rating for pension purposes. This should be clarified by the RO. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he clarify whether he wishes to claim entitlement to a permanent and total disability rating for pension purposes. If so, the RO should undertake all appropriate development on that issue. 2. The RO should contact the veteran and inform him that in support of his claim concerning psychiatric disability he may submit letters from fellow soldiers or others who can describe his behavior or particular incidents in or after service. The veteran should also be asked to identify any additional evidence which could be supportive of any of his claims. 3. In accordance with procedures outlined in Manual M21-1, the RO should request that NPRC search for mental hygiene records showing treatment or evaluation of the veteran in 1972 or 1973 at the U.S. Army Hospital, Fort Ord, California. The RO should also request that NPRC provide any additional service personnel records that may be available for the veteran. 4. The RO should obtain from the Social Security Administration a copy of the record upon which it based its February 1986 decision that awarded the veteran disability benefits. The RO should also request any subsequent decisions of the Social Security Administration concerning disability benefits along with a copy of the supporting record. 5. Then, in light of the evidence obtained pursuant to the requested development, the RO should determine whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for psychiatric disability, ulcer disease, back disability, and shoulder disability. If so, the claims should be reopened and adjudicated based on a de novo review of all the evidence, both new and old. See Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1991). The RO should also readjudicate the issue of entitlement to service connection for heart disability. 6. If it has been determined that the veteran wishes to pursue a claim of entitlement to a permanent and total disability rating for pension purposes, the RO should adjudicate the claim, to include evaluating the veteran's disabilities, assigning a percentage evaluation for each disability under the VA Schedule for Rating Disabilities, and giving appropriate consideration to the provisions of 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.17 (1992). If the veteran disagrees with any decision of the RO, and if otherwise appropriate, a supplemental statement of the case should be issued for all issues in appellate status. If the appealed issues include entitlement to a permanent and total disability rating for pension purposes, the supplemental statement of the case should include the provisions of the appropriate Diagnostic Codes and a discussion of their applicability to the veteran's disabilities, as well as a discussion of the average person standard and unemployability standard by which a permanent and total disability rating for pension may be assigned. Then, the veteran and his representative should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until his is contacted by the RO. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * SHANE A. DURKIN ROBERT E. SULLIVAN * 38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1992).