Citation Nr: 1308806 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-41 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include generalized anxiety disorder (GAD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2010, the Veteran presented sworn testimony during a formal RO hearing. A transcript of the hearing has been associated with the Veteran's VA claims file. The Veteran was scheduled to appear at hearing before a Veterans Law Judge in May 2011; however, as noted by his representative, he cancelled his hearing request. REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that the appeal must be remanded for further development. With regard to the claim of entitlement to service connection for an acquired psychiatric disability to include GAD, the Veteran contends he incurred GAD as a result of his military service. Specifically, he claims that his high stress military occupational specialty (MOS) of recruiter caused him to develop GAD. See, e.g., the May 2010 RO hearing transcript. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's DD-214 demonstrates that he served as a recruiter for 14 years and 9 months. His service treatment records, including his March 1997 retirement examination, are absent any documentation of in-service psychological complaints. Notably, the Veteran's service personnel records have not been associated with the claims file. Given the Veteran's allegations, these records should be obtained as they may be relevant to the pending claim. VA treatment records dated in April 2008 and September 2008 document a continuing diagnosis of adjustment disorder with depressed mood. The Veteran submitted a private psychiatric assessment in support of his claim. In the June 2009 assessment, Dr. L.V.Y. diagnosed the Veteran with GAD and atypical depression. He then opined, "I believe that both conditions are connected to and caused by longstanding stressors which happened during the 21 years in the military especially 15 years being a military recruiter. Curiously, Dr. L.V.Y. provided no explanation for why he believed there was a relationship between psychiatric disability and the stresses of military service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Dr. L.V.Y also failed to discuss the significance, if any, of the Veteran's prior contentions that his psychological symptomatology was the result of his parotid gland surgery in September 2005. See, e.g., the Veteran's claim dated in January 2006 and a VA examination report dated in August 2006. There is no other evidence of record that addresses the question of medical nexus. Thus, the acquired psychiatric disability claim presents certain medical questions, which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concerning medical nexus must be addressed by an appropriately qualified clinician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, upon remand, the Veteran should be afforded a VA examination to address the question of nexus pertaining to the acquired psychiatric disorder claim. Additionally, review of the record (including the Veteran's physical VA claims file as well as his Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received at the VA Medical Center (VAMC) in Tampa, Florida, or any other facility, since August 2010. All such available documents should be associated with the claims file. 2. Contact the appropriate records custodians in order to obtain the Veteran's service personnel records. Any response should be associated with the Veteran's claims file. If said records cannot be obtained, provide the Veteran with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran's claims file. 3. After completing the development sought above, schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed acquired psychiatric disability, to include GAD. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should elicit from the Veteran a detailed account of any instances of in-service and post-military psychological symptomatology. After reviewing the file, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current acquired psychiatric disability had its clinical onset during the Veteran's active duty or is otherwise related to such service. In answering this question, the examiner should address the Veteran's report of in-service military stressors. Additionally, the examiner should address the Veteran's post-service medical history to include his assertions of continuity of symptomatology dating from his military service. In rendering his/her conclusions, the examiner should also specifically discuss the June 2009 private psychiatric assessment from Dr. L.V.Y. The examiner should provide a complete rationale for any opinion given, including discussion of any evidence contrary to the opinion arrived at by the examiner. If the examiner is unable to provide an opinion without resorting to mere speculation, he/she must so state and provide reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion. 4. Thereafter, readjudicate the issue on appeal - entitlement to service connection for an acquired psychiatric disorder to include GAD. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).