Citation Nr: 0810949 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-42 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for psychiatric disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from May 1978 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The veteran testified before the undersigned at a hearing held at the RO in February 2008. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran contends that his depression began in service, as evidenced by his discharge for "apathy." His DD Form 214 reveals that he was discharged for reason of "Unsuitability Apathy Defective Attitude or Inability to Expend Effort Constructively." His service personnel records are not on file. The service medical records show that the veteran was given a mental status examination, presumably in connection with his discharge for the reason stated on his DD Form 214. The examination report appears to be a carbon copy of the original, and when read in light of an obvious carbon defect, indicates that no significant mental illness was present. The report of his service separation examination records his denial of any current depression, excessive worry, or nervous trouble. VA treatment records for 1999 to 2004 document treatment for depression and possible obsessive-compulsive disorder, with endorsement of psychotic symptoms. The veteran reported that everyone had been out to get him in service and thereafter, and that he regretted not sticking up for himself in service when he was mistreated or ignored. He reported that he was discharged for "apathy" because he was not energetic enough, and that he was counseled in service for apathy. He reported that he experienced a previous episode of increased depression from 1990 to 1996. The records show treatment for neurotic excoriations. At his February 2008 hearing, the veteran testified that noncommissioned officers in service harassed him by assigning him unfavorable duties. He explained that he developed a bad attitude from this treatment, and received three nonjudicial punishments which resulted in a significant reduction in rank. The veteran testified that he started receiving treatment for his psychiatric problems in 2001, and prior to this treatment would manifest depression in the form of picking at his sores. The veteran testified that a counselor told him that the apathy for which he was discharged was a form of depression. The record shows that the veteran has not been scheduled for a VA examination in connection with his claim. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in disability compensation claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, the veteran has been diagnosed as having psychiatric disability, has testified as to certain events in service which led to depression, and reports that his depressive symptoms have continued since service. Given the above, the Board finds that a VA examination is necessary in this case. The Board notes that the RO conducted an electronic search of the veteran's prior visits to VA medical facilities, which revealed that he had received treatment at VA's Pacific Islands Health Care System (in Hawaii) and Central California Health Care System in 1998, and at VA medical facilities in Montana and Oregon in 1999. The search results did not suggest that the treatment involved psychiatric complaints or problems, and the veteran has not alleged that treatment records from the above sources would be relevant to his claim. Nor has he actually ever advised VA that he was treated at the facilities. Nevertheless, if the veteran does believe that records from the above sources are relevant, he should so notify VA, preferably before the case is recertified to the Board. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should obtain the veteran's medical records from the VA Puget Sound Health Care System (American Lake Division) for October 2004 to the present. 2. The RO should contact the appropriate agency to obtain the veteran's service personnel records. 3. The RO should contact the veteran and invite him to obtain a statement as to the etiology of his psychiatric disorder from the counselor he testified had linked his depression to apathy in service. 4. Thereafter, the RO should arrange for the veteran to undergo a VA examination to determine the nature, extent and etiology of the veteran's psychiatric disability. All indicated studies should be conducted. The examiner should be requested to provide an opinion as to whether it is at least as likely as not that the veteran's psychiatric disability is etiologically related to service or was manifest within one year of his discharge therefrom. The veteran's claims file must be made available to the examiner for review. 5. The RO should then prepare a new rating decision and readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate 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 he is notified by the RO. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2007).