Citation Nr: 1306916 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 05-08 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a psychiatric disorder, to include mood disorder. REPRESENTATION Appellant represented by: Mark Lippman, Attorney ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from September 1977 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, that determined new and material evidence had not been received to reopen a previously denied claim of service connection for a psychiatric disorder. The Veteran filed a timely appeal to the Board, which declined to grant an application to reopen in a decision dated May 2007. Jurisdiction over this case is currently with the Baltimore, Maryland, RO. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2008, a Joint Motion for an Order Vacating the Board Decision (Joint Motion) was brought before the Court. In an Order dated that same month, the Court vacated the May 2007 Board decision pursuant to the Joint Motion, and remanded the case to the Board for readjudication consistent with its Order. In December 2008, the Board remanded the issue of entitlement to service connection for an anxiety disorder for further development. Pursuant to the May 2008 Joint Motion and subsequent Order the claim was adjudicated as a new claim rather than an application to reopen a previously denied claim. In May 2009, the Board denied entitlement to service connection for an anxiety disorder. The Veteran appealed that decision to the Court. In January 2010, a Joint Motion was brought before the Court. In an Order dated that same month, the Court vacated the May 2009 Board decision pursuant to the Joint Motion, and remanded the case to the Board for readjudication consistent with its Order. In April 2010, the Board again remanded the issue of entitlement to service connection for an anxiety disorder for additional development. In March 2011, the Board denied entitlement to service connection for a psychiatric disorder, to include anxiety disorder. The Veteran appealed that decision to the Court. In June 2012, a Joint Motion was brought before the Court. In an Order dated that same month, the Court vacated the March 2011 Board decision pursuant to the Joint Motion, and remanded the case to the Board for readjudication consistent with its Order. The Board notes that the psychiatric claim on appeal had previously been developed to include only an anxiety disorder. However, the Court has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim on appeal has been recharacterized as set forth above. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND According to the June 2012 Joint Motion, VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA) has not been satisfied. Specifically, the parties have determined that in its March 2011 decision, the Board relied on a July 2010 VA examination report that was inadequate. Specifically, in the report, the VA examiner opined that the Veteran did not have an anxiety disorder in service and did not currently have an anxiety disorder. Instead, the VA examiner concluded that the Veteran had a diagnosis of a mood disorder. The VA examiner, however, did not provide an opinion as to whether the mood disorder was related to service. As the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the evidence of record, and as an opinion has not been provided as to the etiology of the currently diagnosed mood disorder, the Veteran should be provided with a new medical examination to address whether he has any current psychiatric disorder that is related to service, to include any reported in-service stressful event. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his psychiatric disorder should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED 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) (2012). Expedited handling is requested.) 1. The RO shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that are not yet associated with his claims file for treatment of his asserted psychiatric disorder. All records obtained must be associated with his claims file. 2. The RO shall afford the Veteran VA mental health disorders examination in order to determine the nature and etiology of any psychiatric disorder found to be present, to include mood disorder. The claims file and a copy of this Remand must be reviewed prior to the examination, and a notation to the effect that this record review took place shall be included in the report. The examiner is asked to identify and diagnose any currently manifested psychiatric disorder(s), describing the symptomatology associated with the diagnosed disorder(s) to the extent possible. For each psychiatric disorder currently present or exhibited since the Veteran filed the current claim (since June 2004), to include the previously diagnosed mood disorder, the examiner is asked to opine as to whether it at least as likely as not had its clinical onset in service or is otherwise related to active duty. The examiner should give a complete rationale for any opinion given and consider the overall record, including the service treatment records reflecting an impression of "anxiety disorder?" in May 1978, depressed disorder in June 1978, nonspecific personality disorder on VA examination in October 1993 and mood disorder on VA examination in July 2010. 3. The RO will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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 purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ THOMAS J. DANNAHER 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).