Citation Nr: 0811186 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-34 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a psychiatric disorder, to include depression and anxiety. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from September 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran requested a hearing before a Decision Review Officer (DRO) at the RO, which was scheduled for December 21, 2005. The veteran notified the RO that he would not appear at the scheduled hearing. The veteran's request for a hearing, therefore, is deemed to have been withdrawn. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required. REMAND Additional information is needed prior to disposition of the claim. The veteran served in the Marine Corps from September 1942 to January 1946. While the veteran's service medical records do not show any treatment, complaints, or diagnoses of depression or anxiety, it appears that the veteran participated in action against enemy forces. The veteran contends that his depression and anxiety are caused by events he witnessed during these periods of action. There is competent medical evidence of record, including VA treatment records, that the veteran has current diagnoses of depression and anxiety disorder. The duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is necessary when the record contains competent evidence that the veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Given the preceding evidence, it appears that a VA examination for the purpose of a nexus opinion is necessary because (1) the record contains competent evidence related to diagnoses of depression and anxiety disorder; (2) the veteran's service personnel records indicate that the veteran engaged in combat with the enemy; and (3) the evidence indicates that the claimed disabilities may be associated with the veteran's combat experience. See McClendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that the latter element is a low threshold). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. The AMC/RO should take this opportunity to ensure that the veteran has been given proper notice and assistance as required by the holding in Dingess. Accordingly, the case is REMANDED to the AMC for the following action: 1. Ensure that the veteran is given proper notification and assistance appropriate for his claim in accordance with the decision in Dingess. Specifically, the veteran should be advised of what information and evidence not previously provided, if any, is necessary to establish a disability rating and an effective date if service connection is awarded. 2. Schedule the veteran for a psychiatric examination to determine the nature, approximate onset date, and etiology of any mental disorder which may currently be present. The veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should clarify whether the veteran suffers from any mental disorder, and given the evidence in the veteran's service medical records, opine whether it is at least as likely as not (50 percent or greater probability) that a diagnosed current mental disorder is related to service. The physician must set forth a rationale underlying any conclusions drawn or opinions expressed. 3. Thereafter, readjudicate the issue on appeal. If a determination remains unfavorable to the veteran, the veteran and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The veteran and his representative should be afforded the applicable time period in which to respond. The veteran has the right to submit additional evidence and argument on the matter 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 Supp. 2007). _________________________________________________ J. A. MARKEY 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) (2007).