Citation Nr: 0813960 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-36 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from April 1966 to April 1968. By rating action dated in November 1968, the Regional Office (RO) denied the veteran's claim for service connection for phobic reaction. He was notified of this decision and of his right to appeal by a letter dated the following month. A timely appeal was not received. The veteran's subsequent attempt to reopen his claim was denied by the RO in a February 2004 rating decision which found that new and material evidence had not been received. This case was previously before the Board of Veterans' Appeals (Board) in May 2007, at which time it was remanded for additional development of the record and to ensure due process. The case is before the Board for appellate consideration. In May 2007, the Board characterized the issue as whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, to include phobic reaction. As noted above, the claim for service connection for phobic reaction was denied by the RO in November 1968. See 38 U.S.C.A. §§ 5108, 7014, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). Nevertheless, while the prior final denial concerned phobic reaction, the current claim on appeal involves other psychiatric diagnoses. These two disabilities are different for purposes of VA adjudication. In Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In view of Boggs, it is the preliminary determination of the Board that the claim of service connection for an acquired psychiatric disorder (variably diagnosed in the record as anxiety disorder, major depressive disorder, or dysthymia) was not previously adjudicated in a prior final denial, as that denial addressed a different disability, and should be addressed on a de novo basis. The Board acknowledges that it remanded the claim in May 2007 to enable the RO to provide the veteran the appropriate notice regarding claims based on new and material evidence. Since Boggs was decided subsequent to the Board's decision, however, the claim for an acquired psychiatric disorder will be adjudicated on its merits. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran asserts that service connection is warranted for a psychiatric disability. The service treatment records disclose that the veteran was seen at the mental hygiene clinic on several occasions. It was reported in October 1967 that he had a life long pattern of characterological problems. It was noted that following month that he had some guilt feelings concerning his self image. Later in November 1967, the veteran verbalized some of his fears and his lack of interest in talking with people. On VA hospitalization from June to August 1968, it was noted that the veteran had a fear of closed spaces and that he had screamed at times because he felt that everything was closing in on him. He related that he had always been very nervous and scared of everything. The diagnosis on discharge was phobic reaction. He was prescribed medication at the time of his discharge from the hospital. The veteran has sought treatment for psychiatric complaints from the VA in recent years. The diagnoses include major depressive disorder, anxiety disorder, and dysthymia. The record reflects that the veteran has not been afforded a psychiatric examination by the VA. As the record shows evidence of treatment in service and current disability or symptoms a VA examination is necessary to obtain an opinion as to the relationship of the current conditions to service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006) Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Boston VA medical system dating since May 2007. 2. The veteran should be afforded a VA psychiatric examination to determine the nature of his current psychiatric disability and for an opinion as to its possible relationship to service. The examination report should include a detailed account of all pathology found to be present. All necessary special studies or tests are to be accomplished. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the veteran, the examiner should provide an opinion concerning whether it is more likely, less likely, or at least as likely as not that any current acquired psychiatric disability is related to his military service. If the examiner determines that any currently noted psychiatric disability is related to service, he/she should provide an opinion as to whether the disorder clearly existed prior to military service, and if so, whether such was permanently worsened beyond natural progress by service. A rationale for any opinion expressed should be set forth. 3. Following completion of the above, the RO/AMC should review the evidence and determine whether the veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ K. A. BANFIELD 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).