Citation Nr: 1314883 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 07-19 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder other than PTSD. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2006 of a Department of Veterans Affairs. In October 2007, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the Veteran's claims file. In September 2010, the Board remanded the claims. In a decision in June 2011 decision, the Board denied the claims of service connection for PTSD and for a psychiatric disorder other than PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the parties (the Veteran and the VA Secretary) filed a joint motion to vacate and remand the Board's decision. In December 2011, Court granted the motion. In January 2013, the Board obtained an expert medical opinion from the Veterans Health Administration (VHA). In January 2013, the Veteran and his attorney were provided with a copy of the VHA opinion. In January and in March 2013, the Veteran's attorney submitted additional argument and evidence. In January 1985, the RO denied service connection for a nervous disorder on grounds that a psychiatric disorder was not shown in service. After the Veteran was notified of the determination and of his appellate rights, he did not appeal the rating decision and the rating decision became final on the evidence of record. And while VA received a copy of a December 1984 VA hospital report with a diagnosis of depression within one year from the date that the RO mailed the notice of the adverse determination, the diagnosis of depression was not related to service by complaint, history or finding. The evidence was therefore not new and material evidence under 38 C.F.R. § 3.156 (a) (1985) and not considered as having been filed in connection the claim, which was pending at the beginning of the appeal. In March 2006, the Veteran filed the current claims. Claim based on a diagnosis of new mental disorders, in this case, PTSD, dysthymic disorder, or major depressive disorder, are new claims to be decided on the merits without regard to finality of the rating decision in January 1985. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The claims have been styled to comport with the procedural history. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. REMAND In an opinion in January 2013, a VHA expert, a psychologist, expressed the opinion that there was not undebatable evidence that PTSD or a psychiatric disorder other than PTSD pre-existed the Veteran's period of service. As the evidence of record is insufficient to decide the claims on a direct basis, the case is REMANDED for the following: 1. Request records of the Social Security Administration. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Obtain VA records since June 2007. 3. Afford the Veteran a VA examination, including psychological testing for PTSD, by a VA psychiatrist or clinical psychologist to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that any current psychiatric disorder is related to the events in service as shown in the service treatment records and described by the Veteran? In formulating the opinion, the VA examiner is asked to consider that the Board's finds that neither PTSD, nor dysthymic disorder, nor major depressive disorder pre-existed service under VA's mandatory statutory evidentiary standard that applies to a pre-existing condition. Also, the VA examiner is asked to consider the following significant facts as determined by the Board: The Veteran served on active duty from May 1974 to May 1975. The Veteran did not serve in combat, and there is no allegation of fear of hostile military or terrorist activity or of a personal assault. The service treatment records show that on entrance examination the Veteran denied a history of nervous trouble or of depression, and the psychiatric evaluation was normal. While the Veteran was in service, he learned that his brother was killed in a vehicle accident in October 1974, and shortly after his brother's death the Veteran became a convert of Jehovah's Witnesses, a religion he had not accepted in his formative years. The Veteran then requested to be separated from service because of his religious convictions that prohibited him from serving in the armed forces. On psychiatric evaluation in May 1975, no psychiatric disease was identified. The Army psychiatrist commented that the Veteran had ethical and religious convictions, which made the Veteran's continued service in the military untenable. The Veteran was subsequently administratively discharged for service as a conscientious objector. After service, in November and December 1984, the Veteran was hospitalized by VA after taking a large number of aspirin tablets in a suicide gesture. The Veteran stated that he become increasingly despondent over the past several weeks due to problems in his job and family life. The diagnosis was depression. VA records in August and September 1989 show a diagnosis of dysthymic disorder. In March 1997, the diagnoses were depressive disorder and posttraumatic stress disorder. The stressors were family discord, unemployment, and physical problems. In November 2001, the diagnosis was major depressive disorder. In June 2007 show that the Veteran stated that he had posttraumatic stress disorder related to his brother's death. The impression was major depressive disorder and dysthymia. The Veteran's file must be made available to the VA examiner for review. 4. After the development is completed, adjudicate the claims. If any benefit is denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case 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). The claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George E. Guido Jr. 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).