Citation Nr: 1307579 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-12 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include as a result of traumatic brain injury (TBI), and to include as secondary to service-connected headaches. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from June 1988 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran was afforded a Videoconference hearing in December 2012. A transcript is of record. The entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. 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 The Veteran in this case alleges that he experiences a chronic psychiatric disability as a result of either a TBI occurring in service or, alternatively, as secondary to his service-connected headaches. At the outset, the Board notes that the Veteran has been identified as being in receipt of benefits from the Social Security Administration (SSA). The Veteran stated that benefits were awarded from that agency as a result of posttraumatic stress disorder (PTSD). A rating decision of September 2009 denied service connection for PTSD, and this decision was not specifically appealed. At the time the decision was issued, however, the Veteran had already posited his notice of disagreement with respect to claimed depression (thus entering the claim into appellate status). The Veteran's claim is, according to precedent of the U.S. Court of Appeals for Veterans Claims (Court), an application for benefits based on symptoms (as opposed to any one diagnostic entity). See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, while there is a subsequent rating decision that specifically denied the PTSD aspect of the claim, the Board will consider that rating action, as one conducted subsequent to the December 2007 decision with which disagreement was expressly posited, to be of a clarifying nature regarding the reasons for the initial denial. Thus, the PTSD aspect of the claim is still before the Board, as well as any other chronic psychiatric manifestations that may be present. As this is the case, the Board notes that the SSA records may be pertinent to the resolution of the appeal. Records in federal custody are deemed to be constructively part of the claims file, regardless of their actual physical presence in the record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, the Board must remand the claim so that copies of these records can be obtained and associated with the claims file. With regard to the merits of the claim, the Board notes that the Veteran is indeed in receipt of service-connected compensation benefits for a headache disorder. An October 2007 VA examination noted a possibility of a relationship between depression and his headaches; however, the opinion was equivocal in nature. Indeed, the examiner said that he could not address the issue of a nexus without resorting to speculation. As such, a follow-up examination should be scheduled. In addition to this, the Board notes that the Veteran had two documented incidents in service where here experienced a traumatic injury. Indeed, the Veteran fell down stairs in June 1988 striking his shoulder, and he struck his head on a ship passageway in April 1990which caused an open laceration (the residual scar is service-connected). A VA clinical record, dated in August 2010, stated that the Veteran's headaches were as a result of a TBI "16 years prior." The Veteran was in naval service at that time, and thus, this record raises the issue as to if a TBI was experienced in service that would, potentially, be productive of a psychiatric disability. Given these findings, and given the inadequate findings of the 2007 examination, the duty to provide an adequate VA medical examination is triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Veteran should be scheduled for a VA psychiatric examination to determine if it is at least as likely as not that any chronic psychiatric disorder had causal origins in service as a result of TBI or, alternatively, if service-connected headaches caused or aggravated a current acquired psychiatric disability beyond the natural progression of the disease process. Accordingly, the case is REMANDED for the following action: 1. Contact SSA and obtain copies of all records, particularly those which pertain to mental health treatment, for the Veteran. Associate copies of these records with the claims file. 2. Schedule the Veteran for a comprehensive VA psychiatric examination. The Veteran's claims file should be provided, and a complete rationale should be provided for any opinion expressed. The examiner should determine whether the Veteran currently has, or has had at any time since August 2007, an acquired psychiatric disability to include depression and/or PTSD. If a chronic psychiatric disorder is diagnosed, the examiner should determine whether it is at least as likely as not (50 percent or greater) that it either began during or was otherwise caused by the Veteran's military service, to include as a result of his in-service head injury that required stitches. If it is concluded that an acquired psychiatric disability was not the direct result of the Veteran's military service, the examiner should determine whether it is at least as likely as not that the Veteran's service-connected headache disorder either a) caused the acquired psychiatric disability, or b) aggravated the acquired psychiatric disability beyond its natural progression. If it is the examiner's opinion that an acquired psychiatric disorder was aggravated by the Veteran's service-connected headaches, to the extent that is possible, the examiner is requested to identify an approximate baseline level of severity of the acquired psychiatric disability before it was aggravated. In so doing, the examiner should specifically address the medical opinion from October 2007 which stated that the examiner did not find evidence that the Veteran's depression was specifically related to his headaches, but allowed that the Veteran's headaches might contribute to his depression; but could not resolve the question without speculation. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. 2012). _________________________________________________ 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) (2012).