Citation Nr: 1310327 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 07-27 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depression and anxiety reaction, to include as secondary to service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to August 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before a Decision Review Officer at the RO on September 27, 2007. A copy of the hearing transcript has been associated with the claims folder. In June 2011, the Board remanded this issue to the agency of original jurisdiction (AOJ) for further evidentiary development. In a March 2007 statement, the Veteran asserted that he incurred an eating disorder and diabetes mellitus as a result of his service. These claims are referred to the AOJ for appropriate disposition. 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 A January 1981 "Report of Contact" reflects that the Veteran may have filed a claim for VA vocational rehabilitation benefits in 1981. Unfortunately, these records are not in the Veteran's claims file. As these records may potentially be relevant to the pending claim, remand is necessary to obtain any available records and associate them with the claim file. Additionally, the file contains forms indicating that the Veteran may have filed a claim for disability benefits either through the Office of Personnel Management (OPM) or the Social Security Administration (SSA). VA will make attempts to obtain records in the custody of a Federal department until it is determined that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). A search for the Veteran's vocational rehabilitation file, and OPM and SSA disability claim(s) records must be undertaken upon remand. Id. The Board's June 2011 remand directed that the Veteran be scheduled for a VA examination in order to determine the nature and etiology of his acquired psychiatric disorder. The remand directed, in pertinent part, that the examiner acknowledge the history of in-service treatment for psychiatric symptoms and alcohol abuse, as well as any history of psychiatric symptoms or treatment for a psychiatric disorder after service. The requested examination took place in August 2011. The examination report states that the claims folder was reviewed. After conducting a diagnostic interview, the examiner diagnosed alcohol dependence, not caused by or a result of the Veteran's military service. The supporting rationale stated that there was no evidence of psychiatric complaints during service, although the Veteran was admitted to a detoxification program for excessive drinking during service. The examiner acknowledged the Veteran's reports of depression and excessive worry at service discharge, but concluded that he was "clinically evaluated as psychiatrically normal" on his separation examination. The examiner also stated that there was no evidence of psychiatric treatment for one year after the Veteran's discharge. Although the Veteran's separation examination notes no psychiatric abnormalities, the separation examination report shows that the examiner scribbled random lines near the areas where "normal" systems would ordinarily be reported. The separation examination also states that the Veteran's musculoskeletal system and lower extremities were normal, despite the fact that the Veteran underwent knee surgery during service and is currently service-connected for residuals of that injury. Thus, the accuracy of the findings at separation examination is questionable. The VA examiner's findings also do not account for the multiple reports of symptoms of anxiety, excessive worry, and depression in the service treatment records. The examiner also stated that there was no evidence of treatment for a psychiatric disorder in the year immediately following the Veteran's discharge, when in fact the Veteran filed a claim for service connection for "nerves" approximately 1 month after his discharge. Additionally, an October 1979 VA examination diagnosed the Veteran with "anxiety reaction", less than 1 year after his separation from service. Moreover, the Veteran has provided competent and credible lay evidence of psychiatric symptoms since service, which were not discussed by the examiner. Finally, the examiner did not provide any support for her finding that the only diagnosis for the Veteran's symptoms is alcohol abuse, which is especially important in light of the multiple post-service diagnoses of depression and anxiety disorder. For these reasons, the Board finds that the examination did not comply with the terms of the Board's June 2011 remand, nor is it adequate for adjudication purposes. The Board also notes that the record raises some question as to whether any current psychiatric disability may be related to the Veteran's service-connected right knee disability. In a February 2013 statement, the Veteran's representative asks that a new examination be arranged and that such examination address the allegation that the Veteran's current psychiatric disability is secondary to his service-connected right knee disability. Accordingly, the Board finds that the new examination must address this issue as well. Remand is required so that the Veteran may be provided with an appropriate examination. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Request from SSA and OPM all records associated with the Veteran's disability claim(s), including all disability determinations and all medical records considered in making those determinations. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 2. Obtain and associate with the claims folder any vocational rehabilitation file for the Veteran that may exist. 3. Schedule the Veteran for a VA mental disorders examination, by an examiner who has not yet evaluated the Veteran, in order to determine the current nature and likely etiology of any acquired psychiatric disorder, including anxiety disorder and major depression diagnosed on examination. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All tests deemed necessary must be performed. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder, including anxiety disorder and major depression, is related to his active duty service. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder, including anxiety disorder and major depression, is caused by the Veteran's service-connected right knee disability. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder, including anxiety disorder and major depression, is aggravated by the Veteran's service-connected right knee disability. The examiner's attention is directed to the service treatment records dated in March 1974, October 1977, January and February 1978, and October 1978, documenting reports of anxiety, depression, and alcohol abuse. The examiner must also consider the June 1979 report of medical history on which the Veteran noted a history of depression and excessive worry, as well as the diagnosis of anxiety reaction on VA examination in October 1979, less than 5 months after the Veteran's separation. The examiner is advised that the Veteran is competent to report the onset and frequency of symptoms such as depressed mood and excessive worry, and that his statements as to the onset, frequency and severity of these symptoms are to be presumed true. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant 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 (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). _________________________________________________ M. N. HYLAND Acting 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).