BVA9418269 DOCKET NO. 94-15 135 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic psychiatric disorder. 2. Entitlement to an increased evaluation for residuals of a head and neck injury, to include dizziness and tenderness, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from July 1982 to July 1985. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service connection is in effect for numerous disorders, to include residuals of a head and neck injury with dizziness and tenderness. This grant was based on a service medical record which showed that the veteran fell in December 1984 and struck his head. He was seen for resulting dizziness, vertigo, headaches and eye problems. A 10 percent rating was assigned effective from July 2, 1985 (the day following separation from service). The Board of Veterans' Appeals (Board) has construed the veteran's August 1994 statement in support of his claim as raising additional issues. The veteran contends that service connection is warranted for post-traumatic stress disorder (PTSD), narcolepsy-cataplexy, a low back disorder and a right shoulder disorder. Medical evidence also raises a question of the presence of an organic mental disorder. These issues have not been properly developed or certified for appellate consideration, and therefore, jurisdiction will not be taken over them. These matters are referred to the RO for such further action as is deemed appropriate. In August 1990, service connection for a psychiatric disorder was denied by the RO. In the rating decision, the RO noted that the service medical records were negative for treatment for or diagnosis of a chronic acquired psychiatric disorder. Post service records showed treatment in 1990, however, for psychiatric symptoms. Diagnoses included adjustment disorder, depressed, and rule out post-traumatic stress disorder (PTSD). Also noted was a personality disorder. The RO determined that service connection was not in order as there was no evidence of a psychosis or neurosis in service, or of a psychosis to a compensable degree within one year of separation. The veteran did not timely appeal this determination. The veteran reopened his claim for a psychiatric disorder in January 1992. He claimed that he had paranoid schizophrenia and PTSD which were of service origin. The veteran subsequently submitted a March 1984 service examination report, VA treatment records dated from 1986 through 1992, lay statements as provided by treating physicians from service and post service, and post service private medical records. Our review of the record shows that the RO denied the veteran's claim in February 1994 stating that this evidence did not constitute new and material evidence on the issue of service connection for chronic psychoneurosis. The Board finds, however, that this evidence is new and material as to service connection of a psychiatric disorder or disorders and suggestive of expanded issues. In this regard, we note that the evidence submitted includes the following documents which we consider to be new and material: A VA medical record from August 1986 in which the veteran related that he was seen during service for psychiatric problems. He said that he was unstable and tried to commit suicide and thought he was an angel. Also submitted was a January 1994 statement by Stephen N. Schilt, M.D. He asserted that he treated the veteran in the spring of 1985 (during service) for psychiatric symptomatology and in July 1985, shortly after separation from service. Another document which we view as new and material is an April 1994 statement by Debby Mumm Feinagle, M.A., in which she recalls that she saw the veteran and his wife for marital problems beginning in 1984 and continuing until May 1985. She also indicated that she saw the veteran after separation from service (until April 1988) as he deteriorated mentally. A March 1994 statement from A. C. Zold, Ph.D., Colonel, U.S. Army, indicates observations in 1985 during service of the veteran's increased energy level and agitation, pressured and tangential speech and increase grandiosity. It was recalled that he had received psychiatric treatment and his deterioration, odd behavior, mannerisms and speech had been noted by other health care professionals. March and April 1994 lay observations of the veteran's abnormal behavior in 1984 and/or 1985 were received from [redacted], [redacted] and [redacted], the former two covering the period of the veteran's active service. These records suggest that the veteran was seen for psychiatric symptomatology during service. As this evidence was not considered at the time of the denial of service connection for a psychiatric disorder in 1990, we believe that it is "new." It is also considered by the Board to be "material" as it is relevant and probative as to the issue presented, i.e., whether the veteran has a chronic psychiatric disorder which had its onset during service. As a result of this determination, the veteran's current claim for entitlement to service connection for a psychiatric disorder must be considered on a de novo basis without regard to the finality of any previous RO decision as to an adjustment or personality disorder or psychoneurosis. And as provided by 38 C.F.R. § 19.9 (1993), during the course of review, if it determined that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, a Section of the Board can remand the case to the RO for specific action. Such is true of this case. REMAND As mentioned above, several statements now of record attest to the fact that the veteran was seen during service and thereafter for psychiatric symptoms. It has been explained by Dr. Shilt in his January 1994 statement that in-service records are no longer available as they were only kept for five years. Additionally, he reported that the veteran's treatment was not documented in regular outpatient treatment records. We note, however, that he specifically refers to treating the veteran soon after separation on the dates of July 12, 1985, and July 31, 1985. He recalled that the veteran showed hyper-religiosity and delusions and believed he was an angel. Because the problem was brief and because he appeared to be under a great deal of stress, the physician reported that it was likely felt that the veteran had something "along the lines" of a reactive psychosis. It was his opinion that his treatment of the veteran during active duty indicated that the veteran was experiencing psychotic symptoms. The actual private treatment records of the July 12, 1985, and July 31, 1985, visits referred to by Dr. Shilt are not of record. Likewise, D. M. Felnagle, M.A., a mental health counselor, reported in April 1994 that she saw the veteran and his wife during service for marital difficulties and saw the veteran after service through 1988. Again, the actual post service treatment records are not included in the claims file. We also note that the veteran recently submitted a copy of an in- service examination reported dated in March 1984. This document, not formerly of record, includes the following notation: "schizophrenia psychotic-psychotherapy with Dr. James Thompson MAMC." Also noted were delusions of Vietnam with hallucinations of real combat during FTX assignment. The veteran's signature is to the side of this notation suggesting that he added it himself, but the actual author and date of this notation is unclear. The record includes a detailed VA psychiatric examination report from June 1992. This report provides the results of numerous psychological tests. It is noted that the veteran receives Social Security benefits. Final diagnostic impressions are psychotic disorder not otherwise specified with brief psychotic episodes, rule out organic mental disorder and moderate PTSD. As a psychosocial stressor, the report notes that the veteran was the victim of a "gay bashing" approximately one year earlier. In an August 1984 statement, the veteran contended that his psychiatric problems either had their onset during service or were the result of the head injury that he suffered during service. He also stated that he now had PTSD which was the result of an in-service rape by four enlisted men. The contention that current psychiatric problems might be secondary to injury has not been considered in previous rating decisions by the RO. Nor has the veteran's contention that he has PTSD of service origin. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). In view of the foregoing, we are of the opinion that additional development of the claim is necessary, and it is therefore REMANDED for the following: 1. The RO should seek to obtain and associate with the claims folder the post service medical records showing treatment of the veteran by Dr. Stephen N. Shilt, M.D., namely treatment records from July 12, 1985, and July 31, 1985. Additionally, the post service treatment records showing treatment of the veteran by D. M. Felnagle, M.A., from separation from service through 1988 should be obtained. Dr. Shilt's address is 7609 6th Avenue, Tacoma, Washington 98406. D.M. Felnagle's address is 1618 Wilton Rd. S., Tacoma, Washington, 98465. 2. The RO should request that the veteran identify any current health care providers whose records he believes are pertinent to his claims. The RO should take necessary steps to obtain these records if they are not already of record. 3. After obtaining any necessary authorization from the veteran, the Office of Disability and International Operations for the Social Security Administration should be contacted and asked to provide copies of all exhibits used in making its determination of the veteran's application for benefits. 4. The RO should request that the veteran provide information as to the March 1984 service examination report recently added to the record. For example, did he add the notation pertaining to psychiatric symptomatology? Does he have an original or unaltered of this report that he can provide for the record? If attempts to obtain this record from the veteran are unsuccessful, an attempt should be made to the National Personnel Records Center (NPRC) for the March 1984 examination report as it is important to determine if the psychiatric notation on the document of record was added during service or by the veteran after service. 5. Upon completion of the foregoing, the veteran should be afforded special VA psychiatric and neurological examinations, to determine the nature and extent of any and all psychiatric disorders (both organic and nonorganic) and the manifestations of the current service- connected residuals of a head injury. All appropriate tests should be administered including psychological testing. Detailed findings and history should be reported. The psychiatrist should also address the question of whether the veteran has PTSD which is of service origin or the result of a post service traumatic incident. Details of any alleged stressors should be recorded. The neurologist should provide an opinion as to whether the veteran currently experiences any psychiatric problems that are the result of the December 1984 in-service head injury. The claims folder should be made available to each examiner prior to the examinations. Following completion of the foregoing, the additional evidence should be reviewed by the RO. The RO should address all issues raised and noted in the introduction portion of this determination, to include entitlement to service connection for PTSD. Additionally, they are reminded to provide a de novo review of the issue of entitlement to service connection for a chronic psychiatric disorder as additional evidence submitted by the veteran has been determined by the Board to be new and material. If the benefits sought are not granted, a supplemental statement of the case should be furnished to the appellant and his representative. After they have been provided an opportunity to respond, the claims folder should be returned to the Board for further appellate consideration, if in order. No action is required by the appellant until further notice. No opinion is intimated as to the determination warranted on the merits herein pending completion of the requested development. SAMUEL W. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1993).