Citation Nr: 1313685 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 05-16 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The case was most recently before the Board in March 2011. At that time, the Board reopened a previously denied claim of service connection for posttraumatic stress disorder (PTSD) and ultimately granted service connection for PTSD on the merits. In the March 2011 decision, the Board also denied entitlement to service connection for depression. The Veteran thereafter appealed the Board's March 2011 decision to the United States Court of Appeals for Veterans Claims (Court). By a June 2012 Memorandum Decision, the Court vacated the Board's March 2011 decision and remanded the matter to the Board for further proceedings consistent with the Court's decision. The Court indicated that the portion of the March 2011 Board decision that granted service connection for PTSD was not before the Court; therefore, that portion of the Board's decision appears to remain intact. The issue of entitlement to service connection for depression is the sole claim on appeal presently before Board. 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 In denying entitlement to service connection for depression in the March 2011 decision, the Board determined that the Veteran's feelings of depression were part and parcel of his service-connected PTSD and that there was no current disability of depression in the sense that there was no separate identifiable diagnosis. In the June 2012 Memorandum Decision, the Court found that the Board did not provide an adequate statement of reasons and bases for the denial because it appeared that the Board relied on its own medical opinion that the Veteran's depression was part and parcel of his PTSD. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Court also pointed out that the Veteran's depression may be part and parcel of his already service-connected dysthymic disorder but that the Board did not address this aspect specifically. In this regard, the Board notes that psychiatric disorders other than eating disorders are evaluated under the same rating criteria and VA is precluded from evaluating the same disability under various diagnoses. See 38 C.F.R. §§ 4.14, 4.130, Diagnostic Codes 9201-9440 (2012). However, the Court further indicated that whether the Veteran is entitled to receive compensation for separately diagnosed conditions is separate and apart from whether the evidence establishes that service connection is warranted. As to whether the Veteran has depression as a separate diagnosis, the Court indicated that a November 2001 VA treatment record included a diagnosis of depression not otherwise specified (NOS). The Court also stated that the current disability element of the claim may be satisfied provided the claimant has a disability at the time the claim is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the November 2001 record was produced over two years prior the Veteran's claim of service connection for depression and the Board addressed the record in the March 2011 decision, the Court determined that the Board's finding of no current depression was conclusory in nature. In view of the Court's June 2012 Memorandum Decision, the Board must address whether the Veteran has a separately identifiable disability in depression that is related to his military service or his other service-connected psychiatric disorders, which are dysthymic disorder and PTSD. The Court stated that the Board should consider whether the medical evidence is sufficient to determine whether the Veteran's depression manifests in a way that is separate from his PTSD and dysthymic disorder or whether a medical opinion is necessary to make that determination. In light of this language, the Board finds it necessary to remand the claim for a VA examination and medical opinion to answer the question. In addition, VA treatment records have been added to the record since the most recent adjudication of the claim by the RO or AMC in a November 2010 supplemental statement of the case. Given that the Board is remanding the claim, the RO or AMC will be able to consider the additional evidence in the first instance when the claim is readjudicated. Accordingly, this case is REMANDED for the following actions: 1. Schedule the Veteran for psychological testing and a VA psychiatric examination. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. Psychological testing should be conducted with a view toward determining whether the Veteran in fact meets the criteria for a diagnosis of depression separate and apart from his dysthymic disorder and PTSD. The examiner should list all of the Veteran's psychiatric disorders in accordance with DSM-IV. The examiner should review the psychological test results, examine the Veteran, and provide an opinion as to whether the Veteran's depression manifests in a way that is separate from his PTSD and dysthymic disorder. If the Veteran's depression is a separately identifiable entity, the examiner should also provide an opinion as to whether the Veteran's depression had its onset during, or is otherwise related to, his military service. If not, the examiner should provide an opinion as to whether the Veteran's depression was caused, or aggravated, by his service-connected dysthymic disorder or PTSD. All examination results, along with the complete rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. 2. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 3. Then, after undertaking any other development deemed appropriate, readjudicate the issue of entitlement to service connection for depression. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. The SSOC should take into consideration of the evidence associated with the claims file since the November 2010 SSOC. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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 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). _________________________________________________ L. M. BARNARD 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).