Citation Nr: 1315259 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-21 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as a social and emotional disorder. REPRESENTATION Appellant represented by: Jeany Mark, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active duty service from June 19, 1974, to July 24, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating determination entered in February 2008 by the Department of Veterans Affairs (VA) Buffalo, New York, Regional Office (RO). In June 2009, the Veteran testified at a Board hearing before a Veterans Law Judge that is no longer employed at the Board. A transcript of the hearing is associated with the claims file. In October 2009, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2011, the Veteran's attorney and VA's Office of General Counsel filed a Joint Motion for Remand. In a January 2011 Order, the Court granted the Joint Motion, vacating the Board's decision and remanding the matter to the Board. The appeal was remanded to the RO in June 2011 for additional development. It has been returned to the Board for appellate review. In the June 2011 Remand, it was noted that the Veteran's June 2009 Board hearing was conducted by a Veterans Law Judge that is no longer employed at the Board, and that the Veteran had indicated that he wanted to appear at an additional hearing before the Board at the RO. In February 2013, the Veteran withdrew his request for a hearing. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In June 2011, the Board remanded this claim, consistent with the January 2011 Order, to obtain the Veteran's Social Security Administration records. These have been obtained and associated with the claims folder. A review of these records reveals that the Veteran was found disabled due to major depression also characterized as affective disorder with diagnosis and treatment records dating from 1995. The Veteran argues that he was subjected to abuse from his drill instructor from the first day of basic training and continuing thereafter and that such abuse caused him emotional harm and ultimately mental illness. The Veteran claims that the in-service abuse led to the onset of his psychiatric disorder, although an acquired psychiatric disorder involving depression was not diagnosed until the late 1970s or treated for years following service. It is uncontroverted that the Veteran was separated from service after a short period of time with a diagnosis of an inadequate personality, a character and behavior disorder. He underwent five months of treatment during 1983, when there was noted to be a two to three year history of mental problems. Intelligence and personality testing were undertaken. The intake assessment was of rule out organicity. Subsequent evaluation and testing by VA and non-VA sources yielded various diagnoses, among which were a schizotypal personality disorder, a cyclothymic disorder, a personality disorder not otherwise specified, a dependent personality disorder with passive-aggressive features, major depression with psychosis, bipolar disorder, social phobia, and a schizoaffective disorder. In a statement, received by the RO in August 2007, the Veteran's former spouse reported that at the time of the Veteran's entry onto active duty he was physically and mentally sound. Also noted was a profound change following the Veteran's return from active duty, based on significant depression, crying spells, and avoidance of family functions. Testimony furnished by the Veteran at his June 2009 hearing was to the effect that he was excited about joining the Air Force and beginning a career of military service, but that he was targeted by his drill instructor from the first day of day of basic training and subject to much abuse to the point that his spirit was broken. He indicated as well that he was first diagnosed as having a psychiatric disorder in the late 1970s. The Court has held that in disability compensation claims, VA must provide a medical examination 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.). See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the present case, service treatment records do show mental health issues with the Veteran which served as the basis for his separation from service. The Veteran urges that the current mental health problems he suffers began during his service. The recently acquired SSA records demonstrate that there is no current personality disorder but rather long-standing psychiatric illness. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's current psychiatric disorder and his service, is warranted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination by a psychiatrist or a psychologist to determine the nature and etiology of all acquired psychiatric disorders present during the period of this claim. The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed. With respect to any acquired psychiatric disorders currently present or present at any time during the pendency of this claim, the examiner should provide an opinion with respect to each disorder as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. The examiner should opine whether there is a 50 percent or better probability that the mental health issues in service were in fact the initial manifestations of any current psychiatric disability. The rationale for all opinions expressed should also be provided. 2. The RO or the AMC should undertake any additional development it determines to be warranted. 3. Then, the RO or the AMC should adjudicate the issue of entitlement to service connection for psychiatric disability in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his attorney representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).