Citation Nr: 1303384 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-19 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1978 to March 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2010, a travel board hearing was held before the undersigned in Los Angeles, California. A transcript of the hearing is associated with the Veteran's claims file. In a December 2010 decision, the Board denied the Veteran's claim for service connection for an acquired psychiatric disorder. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to an October 2011 Order following a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board's December 2010 decision regarding the denial of service connection for an acquired psychiatric disorder and remand the matter so that the Board could obtain outstanding records of VA treatment, specifically including biopsychosocial evaluations conducted in August 2006. The Court granted the joint motion and remanded the case to the Board. The Board subsequently remanded the case in March 2012 so that VA treatment records, including the August 2006 biopsychosocial assessment, could be obtained. 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 on his part. REMAND After review of the treatment records obtained pursuant to the Board's March 2012 remand, the Board finds that additional development, specifically a VA compensation examination, is warranted in this case. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. The VA outpatient treatment records recently associated with the Veteran's claims file include the August 2006 biopsychosocial evaluation and a May 2011 outpatient mental health clinic assessment. Review of these evaluations shows that the Veteran's past psychiatric history starts with a description of a 1979 suicide attempt that is documented in the Veteran's service treatment records (STRs). While no specific relationship was made, the Board finds that the references are sufficient, when combined the Veteran's lay testimony, to meet the low threshold required for a VA examination. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection). Under these circumstances, the Board finds that the Veteran should be afforded a medical examination in order to determine whether the Veteran's current psychiatric condition is etiologically related to his active military service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo a mental disorders examination to ascertain the current nature and etiology of his psychiatric disorder. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that any currently diagnosed psychiatric disorder is related to service, specifically the suicide attempt noted while the Veteran was on active duty. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 2. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim(s) for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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. 2012). _________________________________________________ BARBARA B. COPELAND 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) (2012).