Citation Nr: 1313409 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-21 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a psychiatric disorder, other than PTSD. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from November 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2009, the Veteran presented testimony relevant to the issue on appeal before a Decision Review Officer (DRO) at a hearing held at the Nashville RO. A transcript of the hearing is associated with the record. The Veteran requested a Board personal hearing in April 2010. Because the Veteran withdrew the hearing request in August 2010, the Board hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2012); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). The issue of service connection for PTSD was denied by the Board in December 2012. At that time, the claim for service connection for an acquired psychiatric disorder, other than PTSD, was remanded to notify the Veteran of the requirements to establish entitlement to service connection for an acquired psychiatric disorder, other than PTSD, and to readjudicate the claim for service connection for an acquired psychiatric disorder, other than PTSD. This was accomplished, and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board has reviewed the Veteran's physical claims folder, as well as the Veteran's electronic folder through Virtual VA, to ensure a complete review of the evidence in this case. Additional evidence was received at the Board in March 2013, for which a waiver of initial RO consideration was provided. 38 C.F.R. § 20.1304 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A review of the record discloses a need for further development prior to appellate review on the merits of the claim for service connection for an acquired psychiatric disorder, other than PTSD. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Specifically, the Veteran should be given a VA psychiatric examination to determine the nature and etiology of any current psychiatric disorder, other than PTSD. This case 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 concern the relationship, if any, between the Veteran's currently diagnosed acquired psychiatric disorder, other than PTSD, and military service. These questions must be addressed by an appropriately qualified medical professional. 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). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). The Board notes the June 2007 VA treatment record, where the VA examiner opined that trauma during service seemed to have something to do with the current diagnosis of depression. In the January 2013 VA examination, the VA examiner diagnosed PTSD, major depressive disorder, and obsession compulsion disorder. The VA examiner opined that the Veteran's PTSD developed as a result of several traumatic events during active duty service and that the Veteran's depression was not just a symptom of the PTSD, but was a separate Axis I diagnosis. However, the VA examiner did not provide a nexus opinion on the relationship of the Veteran's psychiatric disorders, other than PTSD, to his active duty service. Given the reported traumatic events in service, the current diagnoses of depressive disorder and obsessive compulsion disorder, and the VA examiners' statements asserting a possible relationship between the current disorders and service, the Board finds that a VA examination with medical nexus opinion is required to determine whether the current acquired psychiatric disorder, other than PTSD, is causally related to active service. Accordingly, the issue of service connection for an acquired psychiatric disorder, other than PTSD, is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA compensation examination to determine the nature and etiology of the Veteran's acquired psychiatric disorder, other than PTSD. The relevant documents in the claims folder should be made available to the VA examiner for review. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide a diagnosis or diagnoses corresponding to the claimed psychiatric disorders. The VA examiner should also request a history from the Veteran. A notation to the effect that the record review and history took place should be included in the report of the examiner. Based upon a review of all the record, including service treatment records, history of the Veteran, and clinical findings, for all psychiatric diagnoses, the VA examiner is requested to offer the following opinion: Is it at least as likely as not (that is, a 50 percent or greater probability) that the diagnosed psychiatric disorders, other than PTSD, are etiologically related to the period of active service? In this case, the Veteran has been previously diagnosed with depressive disorder and obsession compulsion disorder. If the answer is yes, then the VA examiner is asked to opine on which of the Veteran's reported in-service incidents, including having to identify his friend's drowned body and being verbally harassed by fellow servicemembers, was the likely cause. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 2. Thereafter, the RO should readjudicate the issue of service connection for an acquired psychiatric disorder, other than PTSD. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The appellant 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). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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). ______________________________________________ MICHELLE L. KANE 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).