Citation Nr: 1315936 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-42 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: John R. Worman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active military duty from December 1970 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that rating decision, the RO treated the previously denied claim for a psychiatric disability as reopened and continued to deny the underlying service connection claim. In April 2011, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing at the RO. The hearing transcript is associated with the claims folder. In August 2011, the Board reviewed the Veteran's petition to reopen for new and material evidence on a de novo basis. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v, Principi, 26 5 F.3d 1366 (Fed. Cir. 2001). The Board granted the Veteran's petition to reopen for new and material evidence and remanded the underlying service connection claim for additional development. It has returned to the Board for appellate review. A review of the Virtual VA paperless claims processing system shows that updated VA treatment records from approximately November 2011 to September 2012 are of record. As the appeal is being remanded, the agency of original jurisdiction (AOJ) will have an opportunity to consider these records in subsequent adjudication. 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 The Veteran contends that his claimed psychiatric disorder is secondary to service connected disabilities of diabetes mellitus, Type II and associated peripheral neuropathy of both upper and lower extremities. Under 38 C.F.R. § 3.310, secondary service connection is warranted for any disability caused or aggravated by a service connected disability. The Veteran was afforded a VA psychiatric examination in September 2011. The VA examiner opined that the Veteran's longstanding psychiatric dysfunction was not associated with service or "in any way" related to his service connected jaw disorder. Subsequently, the Veteran also submitted supplementary medical evidence. A newly submitted Medical Journal article concluded that diabetes doubled the odds of comorbid depression. In March 2013, a private (non-treating) psychologist, Dr. A.F. expressed a positive opinion. He determined that the Veteran had a mood disorder related to service connected diabetes and associated neuropathy. He explained that the basis for the secondary relationship was the temporal onset of the mood disorder. These reports must be considered in the updated medical opinion. As the case is being remanded, ongoing VA treatment records should also be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA treatment records beginning in September 2012 and associate them with the claims folder. Efforts to obtain these records must continue until it is determined that the further efforts would be futile. In the event requested records cannot be located, documentation of the search efforts must be reflected in the claims folder with notice to the Veteran and his representative. 2. Thereafter, schedule the Veteran for a psychiatric examination. The claims file, to include a copy of this Remand, and any pertinent records in Virtual VA, must be made available for review of the Veteran's pertinent medical and other history. The examination report must state whether this review was accomplished. For each psychiatric disability found, the examiner should indicate whether it is at least as likely as not (50 percent probability or greater) proximately due to or aggravated by service-connected diabetes. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner must provide a rationale for each opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so and cannot solely rely on an absence of contemporaneous medical treatment. 3. After completing all development required to adjudicate the Veteran's claim, re-adjudicate the issue. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). 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). _________________________________________________ THOMAS J. DANNAHER 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).