Citation Nr: 1109331 Decision Date: 03/09/11 Archive Date: 03/17/11 DOCKET NO. 05-21 533A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood. REPRESENTATION Veteran represented by: Robert V. Chisholm WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from December 1985 to December 1991, from November 1993 to March 1994, from August 1996 to February 1997, and from October 1997 to March 1998. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2004 decision by the RO which, in part, denied service connection for adjustment disorder with depressed mood. In July 2007, a Board hearing was held at the RO. Unfortunately, the Veterans Law Judge (VLJ) who conducted the hearing has retired and is no longer at the Board. In October 2010, the Veteran was notified of this information and offered the opportunity for another hearing pursuant to 38 C.F.R. § 20.707. In November 2010, the Veteran's representative submitted a letter indicating that the Veteran did not want an additional hearing in the matter. In a February 2010 decision, the Board, in part, denied service connection for adjustment disorder with depressed mood and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). Pursuant to an August 2010 Joint Motion for Remand, the Court vacated the Board's decision and remanded the matter for compliance with the terms of the Joint Motion. It is noted that the joint motion for remand asserted that the Veteran did not wish to further pursue claims of entitlement to service connection for pancreatitis, right and left knee injuries, pneumonia bronchitis, or hypertension. As such, those issues are considered abandoned and will not be discussed further. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As a result of the Order of the Court, the Board has been directed to undertake action consistent with the Joint Motion for Remand (JMR). In the joint motion, it was asserted, in essence, that the VA psychiatric opinion relied upon by the Board to deny service connection for a psychiatric disorder was based on an inaccurate factual premise. Specifically, the joint motion for remand noted that the VA psychiatrist in October 2009 stated that there was no evidence in the service treatment records that the Veteran sought or received medical treatment for any psychiatric problems during service. The joint motion for remand pointed out that this was not factually consistent with the fact that Air Force records in October and November 1987, while on active duty, show that the Veteran was diagnosed with adjustment disorder with depressed mood due to occupational problems and family stress. Because of this apparent conflict, the joint motion for remand concluded that the opinion was inadequate and directed that an additional medical opinion be obtained on remand to determine whether any current psychiatric disorder was related to or otherwise had its onset in service. Therefore, an expert medical analysis of the facts, based on a comprehensive review of the Veteran's service treatment and post service medical records, is needed to assist VA in resolving the Veteran's claim. On remand, the examiner should address the relevance, if any, of the fact that the Veteran was diagnosed with an adjustment disorder with depressed mood due to occupational problems and family stress during service in October and November 1987. The examiner should also discuss the relevance, if any, of the fact that the remainder of the service treatment records, in combination with service personnel records and the performance evaluations therein, show that the Veteran did not subsequently have such disorder during the remainder of his active service (for example, the Veteran was found to be psychiatrically normal at a physical in May 1994). The examiner should also address statements made by the Veteran and his mother to the Social Security Administration (SSA) to the effect that his symptoms began in approximately 2003 when he lost his job. In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The Veteran should be afforded a VA psychiatric examination to determine the etiology and, if feasible, date of onset of any psychiatric disorder that has been manifest since March 2004. The claims folder and a copy of this remand should be made available to the examiner for review. All appropriate testing should be undertaken in connection with the examination. The examiner should diagnose any current psychiatric disability (to include any psychiatric disability present at any time since March 2004), and should then provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any such psychiatric disorder was first manifested in service or is otherwise related to service. In providing the opinion, the examiner should address the relevance, if any, of the fact that the Veteran was diagnosed with an adjustment disorder with depressed mood due to occupational problems and family stress during service in October and November 1987; that the remainder of his service treatment records, in combination with service personnel records and the performance evaluations therein, show that the Veteran did not subsequently have such disorder during the remainder of his active service (for example, the Veteran was found to be psychiatrically normal at a physical in May 1994); and that statements made by the Veteran and his mother to the SSA suggest that the Veteran's symptoms began in approximately 2003 when he lost his job. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. After the requested development has been completed, the claim should be readjudicated. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, 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 Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter 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. 2010). _________________________________________________ MATTHEW W. BLACKWELDER 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) (2010).