Citation Nr: 1007809 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 95-39 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his Spouse, and J. A. J. ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to March 1971 with service in Vietnam from March 1970 to March 1971. This case initially came before the Board of Veterans' Appeals (Board) on appeal of rating decisions rendered by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before an RO hearing officer in June 1996. A transcript of this hearing is associated with the claims folder. When this case was most recently before the Board in February 2006, it was decided in part and remanded in part. The case has since been returned to the Board for further appellate action. REMAND Although the Board regrets the delay, remand is required in this matter based on recent, controlling case law. As noted by the Veteran's representative in argument before the Board in January 2010, the most recent VA psychiatric examination reflects no diagnosis of PTSD but rather a diagnosis of major depressive disorder. The examining psychiatrist did not render an opinion as to the etiology of the currently- diagnosed psychiatric disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for posttraumatic PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability, "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. Here, the Board notes that the Veteran's various statements and personally reported histories made throughout the processing of the claim, when read in conjunction with the medical evidence obtained by VA on the Veteran's behalf, are reasonably construed as asserting a claim for service connection for the diagnosed psychiatric disability, in light of the holding in Clemons. In this regard, the Board emphasizes that it has repeatedly characterized this claim as one for psychiatric disability, to include but not limited to PTSD, as reflected in both prior remands. Citing to Clemons, the appellant's representative in essence argued in January 2010, that the claim should be remanded, consistent with Clemons, to obtain a medical opinion as to the etiology of the currently diagnosed psychiatric disorder. Under the circumstances, the Board agrees. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The claims folders should be returned to the VA psychiatrist who performed the September 2009 examination. The psychiatrist should be requested to render an opinion as to whether there is a 50 percent or better probability that the Veteran's major depressive disorder originated during the Veteran's active service or is otherwise etiologically related to service. The rationale for all opinions expressed must be provided. If the psychiatrist who performed the September 2009 examination is unavailable, the claims folders should be reviewed by another psychiatrist or psychologist who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 2. The RO or the AMC should undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for psychiatric disability, including PTSD. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further 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 unless he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 of Veterans' Appeals or by the United States Court (CONTINUED ON NEXT PAGE) 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). _________________________________________________ Shane A. Durkin 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).