Citation Nr: 1010967 Decision Date: 03/23/10 Archive Date: 03/31/10 DOCKET NO. 06-26 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include emotional anxiety and depressive disorder. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2004 and October 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that the appellant requested a hearing before a decision review officer (DRO) in connection with the current claims. The DRO hearing was scheduled and subsequently held in April 2006 at the Jackson RO. The appellant testified at that time and the hearing transcript is of record. The Board also notes that the appellant requested a video-conference hearing in connection with the current claims as well. The video-conference hearing was subsequently scheduled and held in April 2009. The appellant testified at that time and the hearing transcript is of record. This case was previously before the Board in August 2009 when it was remanded, in part, for further development. 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 seeks entitlement to service connection for an acquired psychiatric disorder, to include emotional anxiety and depressive disorder. The Veteran contends that her psychiatric disability is due to sexual harassment in service. This case was previously before the Board in August 2009, and it was remanded for the Veteran to be afforded an appropriate VA Compensation and Pension (C&P) examination to determine the nature and etiology of any acquired psychiatric disorder found to be present. Pursuant to the Board's remand, the Veteran was afforded a VA C&P examination in October 2009. After examination, the Veteran was diagnosed with major depression with remission. The examiner noted that the onset of the condition was dated in 1970; however, the examiner opined that it was not due to or caused by the Veteran's military service. Later in the report of medical examination, the examiner noted that the Veteran was not diagnosed with major depression until many years after service. The Board notes that the Veteran separated from service in 1970 and, as such, it is unclear from the opinion rendered whether the Veteran's condition was incurred in service. Accordingly, clarification and/or an additional medical opinion are necessary. In addition, the Veteran reported during the VA examination that she receives treatment from private mental health care providers. On remand, she should be informed that she can submit any relevant private records, that are not already of record, or sufficient information that would allow the RO to attempt to obtain the records on her behalf. Since the claims file is being returned it should be updated to include VA treatment records compiled since January 2009. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran also seeks entitlement to a TDIU. Since the Veteran's claim of entitlement to a TDIU is, in part, dependent upon the outcome of the Veteran's claim entitlement to service connection for an acquired psychiatric disorder, to include emotional anxiety and depressive disorder, the Board finds the issue of entitlement to a TDIU to be inextricably intertwined with that of entitlement to service connection for an acquired psychiatric disorder, to include emotional anxiety and depressive disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Because the issues are inextricably intertwined, the Board is unable to review the issue of entitlement to a TDIU until the issue of entitlement to service connection for an acquired psychiatric disorder, to include emotional anxiety and depressive disorder, is resolved. Id. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder VA medical records pertaining to the Veteran that are dated from January 2009. 2. Inform the Veteran that she can submit any relevant private mental health treatment records, that are not already of record, or provide sufficient information, and any necessary authorization forms, that would allow the RO to obtain the records on her behalf. 3. After the development outlined above has been completed, return the claims folder and the examination report to the examiner who examined the Veteran in October 2009. The examination report indicates that the onset of the condition was in 1970, however, the opinion provided is that the condition was not due to or caused by military service. The examiner is asked to clarify whether the condition began in or was incurred in service based on the fact that the Veteran was discharged from service on October 26, 1970. If the examiner who evaluated her in October 2009 is not available to provide clarification or determines that another examination is warranted, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any acquired psychiatric disorder, to include emotional anxiety and depressive disorder, found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should render an opinion as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that any acquired psychiatric disorder, to include emotional anxiety and depressive disorder, found to be present is related to or had its onset during service. The examiner should comment upon the Veteran's Article 15 non-judicial punishments and the lay statements, including the Veteran's statements, that she was sexually harassed in service by having her superior officer brush against her leg and then look her up and down, by receiving invitations to meet at the club and being yelled at. The examiner must indicate whether a psychiatric condition first manifested in service. The examiner must provide a complete rationale for any stated opinion. 4. Thereafter, the RO must ensure that the above development has been completed in accordance with the remand instructions. The RO should then readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. 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). _________________________________________________ S. S. TOTH 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).