Citation Nr: 1003271 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 08-25 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (claimed as adjustment disorder with depressed mood and anxiety). REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1995 to January 1996 and from April 2003 to October 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that in pertinent part denied the Veteran's claim for service connection for adjustment disorder with depression. In May 2008, the Veteran asserted that he is also entitled to service connection for anxiety. In a June 2008 letter, the RO advised the Veteran that the issues of service connection for anxiety and adjustment disorder with depression are intrinsically linked, and therefore, anxiety will be treated as part of the appeal. The Board has changed the issue on the cover page to more accurately reflect the current appeal. In December 2008, a video conference hearing before the undersigned Veterans Law Judge was held at the RO. A transcript of that hearing is of record. The Board notes that additional evidence was received subsequent to the Statement of the Case issued in July 2008. A waiver of the RO's initial consideration of this evidence was provided by the Veteran in December 2008. 38 C.F.R. § 20.1304(c) (2009). 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for an acquired psychiatric disorder. The service treatment records indicate that the Veteran was evaluated as normal psychiatrically during the July 1995 entrance examination. In December 1995, the Veteran was seen for evaluation of depression. He reported that he was uncertain of his desire to complete training based on spiritual beliefs. He also said that he had made three separate attempts at suicide during training. He reported that he felt depressed and anxious most of the time due to his uncertainty about being in the military and failure to meet standards in training. Mental status examination revealed a mildly depressed anxious mood and his affect appeared appropriate. There were insufficient emotional findings to warrant the diagnosis of a major depressive disorder. The diagnoses were adjustment disorder with depression, identity problem, and religious/spiritual problem. The Veteran was discharged in January 1996 because he lacked the ability to adjust to a military environment. The Veteran served on active duty again from April 2003 to October 2005. Service treatment records from that period of service indicate that the Veteran was treated for various psychiatric disorders including anxiety disorder not otherwise specified, major depressive disorder of moderate degree with recurrent episode, and adjustment disorder with slight depression. A September 2005 entry indicates that the Veteran became angry and jabbed a screwdriver into his thigh. In March 2006, the Veteran was afforded a VA psychiatric examination with a psychologist, during which the Veteran's claims file was not available for review. The Veteran said that symptoms had been present during the previous year, but he denied current treatment for a mental disorder. His psychiatric complaints at that time included anxiety, missing military friends, and sleep difficulties. After a mental status examination, the only diagnosis was an Axis IV diagnosis of mild psychosocial stressors and the Veteran was assigned a Global Assessment of Functioning (GAF) score of 78. The examiner noted that the Veteran had experienced mild anxiety and sleep disturbance prior to finding a job, but he had been feeling better since he had been employed full time. VA outpatient treatment records from January 2007 through December 2008 indicate that the Veteran is receiving continuous psychiatric treatment and has been diagnosed or assessed to have panic disorder with agoraphobia, obsessive- compulsive disorder, depressive disorder not otherwise specified, single and moderate major depressive disorder, and generalized anxiety disorder. During a December 2008 hearing before the undersigned Veterans Law Judge, the Veteran testified that his disability began during active service when he had difficulties with his wife, and those problems led to him receive a humanitarian discharge. He testified that six months after being discharged in October 2005 his wife asked for a divorce and he has dealt with employment and family problems since active service. He said that he has received psychological treatment from VA. A September 2005 United States Coast Guard memorandum, submitted by the Veteran in December 2008, indicates that the Veteran was highly recommended for a dependency discharge because of his family and personal situation. His DD 214 from his second period of active service indicates that he separated from such service by reason of hardship. In light of the above, the Board finds that another VA psychiatric examination should be provided to determine the nature of the Veteran's current psychiatric disability and its possible relationship to active service. See 38 C.F.R. § 3.159(c)(4) (2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Since the Board has determined that an examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2009) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2009) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. Additionally, during the March 2006 VA examination, the Veteran reported that he had received outpatient treatment from 2003 through 2005 from Dr. Sadd for a marital issue. On remand, the RO/AMC should seek to secure such records. Ongoing VA 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. Contact the Veteran and request that he furnish the address of and dates of treatment from Dr. Sadd. After securing the necessary authorizations for release of this information, the RO/AMC should seek to obtain copies of all treatment records referred to by the Veteran which are not already contained in the claims file. In addition, mental health treatment record from the Wilmington, Delaware VA Medical Center dating since December 2008 should be obtained. 2. The RO/AMC should schedule the Veteran for a VA psychiatric examination to determine the nature of any current psychiatric disability and to provide an opinion as to its possible relationship to service. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for all psychiatric disabilities identified. Additionally, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disability (other than a personality disorder) arose during service or is otherwise related to the Veteran's military service, including the symptoms that were noted therein. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. Following the 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. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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. 2009). _________________________________________________ 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) (2009).