Citation Nr: 1310175 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-16 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and schizophrenia. 2. Entitlement to an initial rating greater than 10 percent for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from June 1999 to September 2001. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The March 2006 rating decision originally denied the Veteran's claims for entitlement to service connection for a back disability and an acquired psychiatric disability. In January 2011, the matters were remanded for further development. In a March 2012 rating decision, the RO granted service connection for the Veteran's low back claim, and assigned a 10 percent rating. In April 2012, the Board received the Veteran's notice of disagreement (NOD) with the assigned 10 percent rating. As such, the Veteran's low back claim has been recharacterized as reflected on the title page. 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. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. Regarding the Veteran's psychiatric claim, pursuant to the Board remand, the Veteran was afforded an examination; however, the Board finds that the opinion is inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Indeed, the opinion was to address whether or not the Veteran's psychiatric disability was at least as likely as not related to his military service. Significantly, the Veteran reported on separation examination that he experienced depression and excessive worry. Additionally, he reported suicidal ideation. Post service VA treatment records within the relevant time period document treatment for depression, schizophrenia and substance abuse. In an opinion rendered in March 2011, the examiner noted that the Veteran did not currently show symptoms consistent with depressive disorder. The examiner found in part that the Veteran's currently diagnosed psychiatric disability, schizophrenia, was less likely related to his military service because there was no evidence of psychiatric treatment noted during service. The Board notes, however, the examiner did not provide comment on whether or not the current psychiatric disability was related to the Veteran's reported in-service depression, excessive worry, and suicidal ideation. During the examination, the Veteran reported hearing voices while in service; moreover, in lay statements throughout his appeal, the Veteran has reported that his psychiatric symptoms began during his active military service and have continued since that time. The Board notes that whether or not the Veteran has experienced psychiatric symptoms since service is a fact capable of lay observation. See Jandreau v. Nicholson, 492 F 3d. 1372, 1377 (Fed. Cir. 2007). Notably, the Veteran's service entrance examination does not document a psychiatric disability. Furthermore, upon enlistment, the Veteran does not report a past history of psychiatric disability. As such, in the absence of clear and unmistakable evidence to rebut that presumption, the question for consideration is whether a psychiatric disability was incurred in, rather than aggravated by, active service. See March 2012 supplemental statement of the case. Regarding the Veteran's low back, as noted, in a rating decision dated March 2012, the RO granted service connection for the Veteran's low back claim and assigned a 10 percent rating. In April 2012 correspondence, the Veteran expressed his disagreement with the denial. In short, the Veteran has submitted a timely NOD with the denial which initiates the appeal process. See Manlincon v. West, 12 Vet. App. 238 (1999). As it does not appear that the RO has furnished the Veteran a statement of the case (SOC) on this issue (Virtual VA was reviewed and the SOC has not been uploaded), the Board is required to remand, rather than refer, this issue. Id. For procedural purposes, this claim has been listed as an issue on the title page. Finally, the record reflects that the Veteran receives ongoing VA treatment regarding his psychiatric issue. Specifically, the Veteran stated in April 2012 correspondence that he receives ongoing treatment at VA for his psychiatric disability. A review of the claims file, to include the Veteran's Virtual VA electronic file, reveals treatment records dated through February 2012. As records of such treatment contain pertinent information, they must be secured. Notably, records of VA treatment are constructively of record. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following: 1. The RO/AMC should secure for the record copies of the complete updated (since February 2012) clinical records of any and all VAMC treatment the Veteran has received for his psychiatric disability. 2. Provide the Veteran an SOC with regard to the issue of entitlement to an initial rating in excess of 10 percent for his low back disability. The Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue. Thereafter, the issue is to be returned to the Board only if an adequate and timely substantive appeal is filed. 3. The RO/AMC shall ask the original VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his currently diagnosed acquired psychiatric disorder, to include depression and schizophrenia. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed psychiatric disability was incurred during his active military service? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed psychiatric disability is related to the Veteran's in-service complaints of depression and excessive worry? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the examiner is asked to consider the Veterans lay statements regarding the progression of his disability, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental SOC and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters 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 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). _________________________________________________ MARJORIE A. AUER 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).