Citation Nr: 1002104 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 07-32 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to February 1967. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefits sought on appeal. 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 At the outset, the Board notes that while the Veteran has primarily contended his psychiatric disorder is secondary to his service-connected back disorder, his claim must nonetheless be adjudicated on both direct and secondary bases. The RO has not provided the Veteran with notice advising him of what evidence is needed to substantiate his claim on a direct basis. VCAA notice is mandatory under 38 U.S.C.A. §5103(a) and 38 C.F.R. § 3.159(b), and the Veteran's claim must be remanded for compliance before adjudication can take place. In addition, a VA examination is necessary before the Veteran's claims can be adjudicated. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. With regard to the psychiatric claim, the Veteran has a current diagnosis of a mood disorder, documented, for example, in a September 2006 letter from his private physician. In addition, his service treatment records contain numerous documentations of psychiatric problems, including in June 1965, November 1966, and December 1966. While a VA examination was afforded to the Veteran in August 2006, the examiner did not render a nexus opinion or discuss the service treatment records due to her disagreement with the Veteran's diagnosis. As the remaining medical evidence does support a current diagnosis, and a diagnosis was of record at the time the Veteran's claim was filed, a nexus opinion should be rendered. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2009) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of that claim, even if the disability resolves prior to the Secretary's adjudication of the claim). Further, a number of nebulous nexus opinions linking the Veteran's psychiatric problems to his "physical condition" have been rendered, including private medical reports of September 2006, May 2006, February 2006, and October 2005, and a Social Security evaluation of April 1988. These reports do not make clear whether it is the Veteran's service-connected lumbar spine condition to which the Veteran's psychiatric condition is secondary. An opinion should also be sought on the issue of secondary service connection. Finally, the Veteran should be afforded a VA examination to determine whether his service connected disabilities preclude him from performing substantially gainful employment. Such an opinion has not yet been sought. Accordingly, the case is REMANDED for the following action: 1. With regard to the Veteran's claim for a psychiatric disorder, send him VCAA notice under 38 U.S.C.A. §5103(a) and 38 C.F.R. § 3.159(b), that includes but is not limited to, an explanation as to what information or evidence is needed to substantiate a direct service connection claim. 2. Afford the Veteran a VA examination with a psychiatrist or psychologist to ascertain the nature and etiology of his current psychiatric condition. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's currently diagnosed psychiatric disorder had its onset during service or is in any other way causally related to his active service, or is causally related to or has been aggravated by any of his service- connected disabilities. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. 3. After the Veteran has been afforded the above examination and the psychiatric claim has been readjudicated, afford him an appropriate VA examination so as to provide an opinion concerning the extent of functional and industrial impairment resulting from his service connected disabilities. The opinion should address whether his service connected disabilities alone are so disabling as to render him unemployable. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. All necessary tests should be conducted. 4. After all of the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2009). 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 2002 & Supp. 2009). _________________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2009), 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) (2009).