Citation Nr: 1039733 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 07-17 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for psychiatric disorder, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1991 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). 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 Initially, the Board notes that the Veteran's representative, on the Veteran's behalf, has advanced a new theory of entitlement to support the claim for service connection for psychiatric disorder - entitlement to service connection on a secondary basis. In this regard, it has been asserted that the Veteran's psychiatric disorder is related to his service-connected disabilities. A review of the record does not show that the Agency of Original Jurisdiction (AOJ) has yet considered the Veteran's claim under this theory of entitlement. As such, a remand is necessary to allow for proper development and adjudication by the AOJ of the claim on a secondary basis. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). In light of this additional theory of entitlement, the Veteran should have also be informed of what evidence and information is needed to substantiate this alternate theory of entitlement. Specifically, he should have been informed that establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service- connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Omission of this notice could be prejudicial to the Veteran; therefore, the matter must be remanded to correct this deficiency. Further, during a Decision Review Officer hearing, the Veteran testified that he first experience symptoms of mental health problems in service. The Board notes that a review of the record shows that the Veteran was seen for mental health care in service, and he began receiving formal psychiatric treatment in 2000. Consistent with the Veteran's assertions and the evidence developed during the claims process, the Board finds that the scope of the present claim reasonably encompasses a claim of service connection for any psychiatric disorder, to include on a secondary basis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the Veteran's contentions and the state of the record, the Board finds that a remand is necessary to afford the Veteran a VA psychiatric examination to identify the nature of the disability and to determine the most likely etiology and time of onset of any current psychiatric disorder. It is noted that a review of the record does not reflect that a VA medical opinion has been sought that addresses the question of etiology on a basis of any theory of entitlement. Assistance by VA includes obtaining a medical opinion when such an opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Prior to any examination, the RO should seek the Veteran's assistance in obtaining any outstanding records of pertinent VA or private treatment. It is noted that the Veteran has identified that he sought mental health treatment from VA in 2000. Currently, the record contains VA treatment records from 2005 and 2006, the RO/AMC should attempt to obtain any VA treatment records prior to 2005 and since 2006, and associate them with the claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will specifically inform the Veteran of the information and evidence needed to substantiate a claim of secondary service connection in accordance with 38 C.F.R. § 3.310, and Allen, supra, and allow the Veteran a reasonable time to respond. 2. Ask for the Veteran's assistance in obtaining any outstanding records of pertinent VA or private treatment. In particular, attempts should be made to obtain any VA treatment records prior to 2005 and since 2006, and associate them with the claims folder. 3. After all the available records have been associated with the claims folder, the RO should schedule the Veteran for a VA psychiatric examination to identify the nature of the disability and to determine the most likely etiology and time of onset of any current psychiatric disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner must opine as to whether it is at least as likely as not that any psychiatric disorder demonstrated during the pendency of the appeal is related to or had its onset in service. In doing so, the examiner must acknowledge the Veteran's report of the onset of psychiatric symptoms in service and the May 1994 in-service mental health treatment note. Alternatively, the examiner must also opine as to whether it is at least as likely as not that the Veteran's psychiatric disability was caused or aggravated by his service-connected disabilities, and in particular, his asthma, which is evaluated as 60 percent disabling. All findings and conclusions, accompanied by a rationale, should be set forth in a legible report. 4. The RO should then readjudicate the claim for entitlement to service connection for psychiatric disorder, to include as secondary to service-connected disabilities. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. The Veteran 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). _________________________________________________ STEVEN D. REISS Acting 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).