Citation Nr: 1337527 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-06 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for attention deficit disorder, to include as due to major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and J.T. ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from January 2001 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). A June 2010 formal claim from the Veteran, as well as a July 2010 Report of General information raise the issue of entitlement to service connection for borderline personality disorder. As such, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. REMAND The Veteran contends that his current attention deficit disorder (ADD) is due to his military service, or in the alternative, is the result of medication taken for his service-connected major depressive disorder. The record demonstrates that major depression was diagnosed during the Veteran's military service. VA outpatient treatment records dated in December 2008 show that medication was prescribed for his service-connected major depressive disorder. In this regard, during an August 2012 hearing before the Board, the Veteran asserted that he experienced difficulty focusing and concentrating while in service; however, he stated that he was not formally diagnosed with ADD until 2009, subsequent to service discharge. He reported that Zoloft was prescribed to treat his major depression, as well as Adderall to treat his ADD. The Veteran's service treatment records are negative for complaints of difficulty concentrating or focusing, or a diagnosis of ADD. Post-service private treatment records dated in March 2010 through July 2010 note ADD as an active problem, as well as a prescription of Adderall to treat the disorder. In connection with his increased rating claim for the service-connected major depressive disorder, the Veteran underwent an August 2010 fee-based examination. Upon review of the claims file, the examiner found that the Veteran did not "suffer" from ADD. The examiner explained that the Veteran's difficulty with concentration and task completion were a function of the Veteran's depression. He further explained that such symptoms arose during the Veteran's active service, subsequent to the Veteran's marital problems. The examiner also stated that there was no evidence that the Veteran had symptoms of ADD when he was younger, as he performed well in school. Subsequent VA outpatient treatment records dated in 2012 through April 2013 demonstrate that the Veteran underwent individual therapy. The records also show that the Veteran was continuously prescribed Adderall associated with his history of ADD. Although the August 2010 VA examiner found no evidence of ADD, the evidence of record shows diagnoses of ADD and the prescription of Adderall to treat ADD during the appeal period. McLain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the case must be remanded in order for the Veteran to be afforded a VA examination in connection with the present claim to determine whether any diagnosed ADD had its onset in service, or is due to or aggravated by the Veteran's service-connected major depressive disorder, to include medication taken for major depressive disorder. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In his 2012 hearing before the Board, the Veteran asserted that he was diagnosed with ADD in 2009 during the course of treatment at Chimney Hill Medical Association. Such private treatment records have not been associated with the record. Therefore, the RO must obtain the Veteran's private treatment records from Chimney Hill Medical Association dated in January 2009 to the present, and associate them with the record. 38 C.F.R. § 3.159(c)(1). In addition, as the Veteran appears to receive ongoing treatment from the VA Medical Center in Hampton, Virginia, the RO must also obtain VA outpatient treatment records from such facility from April 2013 to the present. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for ADD. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain the Veteran's private treatment records from Chimney Hill Medical Association dated in January 2009 to the present, as well as ongoing VA outpatient treatment records from the VA Medical Center in Hampton, Virginia, from April 2013 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. After all available records have been obtained and associated with the evidence of record, the Veteran must be afforded a VA psychiatric examination to determine whether any ADD found or previously diagnosed is related to his military service or to the service-connected major depressive disorder, to include medication taken for major depressive disorder. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. All diagnostic tests and studies deemed necessary by the examiner must be accomplished, to include psychological testing. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether a current diagnosis of ADD that conforms with the criteria from DSM-IV, is found. The examiner must provide an opinion as to whether any currently or previously diagnosed ADD is related to the Veteran's active military service, or due to or aggravated by his service-connected major depressive disorder, to include medication taken for major depressive disorder. If ADD is not found on the current examination, the examiner must provide an opinion as to whether the Veteran's symptoms, to include difficulty focusing and concentrating, are symptoms of a separate and distinct disorder from the Veteran's service-connected depression or are symptoms of his service-connected depression. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If the benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).