Citation Nr: 1317815 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 07-13 035 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for psychiatric disability other than posttraumatic stress disorder (PTSD), to include depression and/or panic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to September 2000, and from February 2003 to June 2004. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2005 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for PTSD. In June 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2007. In April 2010, the Board denied the Veteran's claim for service connection for PTSD. In September 2010, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision and remanding the claim on appeal to the Board for further proceedings consistent with a joint motion for remand (JMR). Following the Court's order, in March 2011, the Board applied the provisions under the newly revised 38 CFR 3.304(f) and granted the Veteran's claim for service connection for PTSD. At that time-consistent with the JMR and Clemons v. Shinseki, 23 Vet, App. 1 (2009)-the Board also determined that a separate claim for service connection for psychiatric disability other than PTSD, to include depression and panic disorder, was raised by the evidence of record. That matter was remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development of the evidence and initial RO consideration. After completing the requested development, the AMC denied the claim (as reflected in a March 2012 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. In May 2012, the Board denied service connection for a psychiatric disability other than PTSD. In November 2012, the Court granted a joint motion filed by representatives for both parties, vacating the decision and remanding the claim for service connection for a psychiatric disorder other than PTSD for further proceedings consistent with a JMR. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matter remaining on appeal is being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND In light of points raised in the parties' joint motion for remand, and the Board's review of the claims file, further RO action in this appeal is warranted. Medical evidence of record reflects that the Veteran has received multi-axial diagnoses which include Axis I diagnoses of depression, not otherwise specified (NOS), and panic disorder, in addition to PTSD (for which service connection has been granted). Post-service VA records of treatment from September 2004 to May 2005 reflect complaints of depression and anxiety. A screening test for depression performed in connection with January 2006 VA treatment was positive. A mental status examination performed at that time indicated severe anxiety, depressed mood, and decreased interest in activities. The multi-axial diagnosis than rendered reflects Axis I diagnoses of depression, NOS and panic disorder without agoraphobia. A follow-up psychiatric evaluation performed in May 2006 revealed essentially the same psychiatric findings. The examiner did not provide, either in the January 2006 or May 2006, any explanation or rationale as to why the Veteran's depression and anxiety symptoms gave rise to independent diagnoses of depression, NOS and panic disorder and are not manifestations of the Veteran's service-connected PTSD. The Veteran's service treatment records reflect no subjective complaints of a psychiatric nature, nor do they reflect any objective findings of any psychiatric symptoms or diagnoses of a psychiatric disorder. Moreover, the Veteran does not expressly assert anywhere in the record that his depression and panic disorder began during service, or alternatively, have been continuous and chronic since his active duty service, or alternatively, are secondary to his service-connected PTSD. The VA treatment records do not express or indicate any opinion that the Veteran's depression, NOS and/or panic disorder is related in any way to his active duty service. The Veteran has not been provided a VA examination to assess the nature and etiology of any psychiatric disorders other than PTSD. In the November 2012 Joint Motion for Remand, the parties agreed that the Board applied an incorrect standard in determining that a VA examination was not required. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C.A. § 5103A(d)(2) (West 2002), 38 C.F.R. § 3.159(c)(4)(i) (2012). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. This evidence in support of this prong need not be competent evidence. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). Although neither the Veteran nor his representative provided any clear lay evidence suggesting a relationship of the symptoms of depression and panic disorders as manifesting in service or were caused or aggravated by service (or, his now service-connected PTSD), the medical examiners considered the Veteran's reported symptoms in the context of diagnoses of PTSD as well as depression and panic disorder that were based, in part ,on events in service. The context is sufficient to at least suggest a relationship between current psychiatric problems and service. Moreover, a psychiatric examination is necessary to determine whether the symptoms that gave rise to separate diagnoses are distinguishable from those that form the basis for the diagnosis of PTSD. Given the above, and in the absence of any medical comment or opinion of record that addresses the nature and etiology of any psychiatric diagnoses other than PTSD, to include depression and/or panic disorder, the Board finds that medical examination and appropriate etiology opinions are needed to resolve the remaining claim on appeal. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); and McLendon, supra. Hence, the RO should arrange for the Veteran to undergo VA psychiatric examination by a psychiatrist or psychologist at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, the claims file currently includes treatment records, reflecting care from the VA Medical Center (VAMC) in Boston, Massachusetts, dated through April 2007. As this treatment appears to be ongoing, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding records of mental health evaluation/and or treatment of the Veteran since April 2007. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private medical records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for psychiatric disability other than PTSD, to include depression and/or panic disorder. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Boston VAMC any outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran since April 2007. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for service connection for psychiatric disability other than PTSD that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by a VA psychiatrist or psychologist at a VA medical facility. The entire claims file, to include complete copy of the REMAND must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include psychological testing, if appropriate) should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should assess the nature and etiology of the Veteran's symptoms that give rise to any psychiatric diagnosis other than PTSD. The examiner must indicate which symptoms are attributable to depression, a panic disorder, and/or any other psychiatric disorder(s) deemed to exist separate and distinct from the manifestations of PTSD. Then, with respect to each such diagnosed psychiatric disorder other than PTSD, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder (a) first manifested in service, or was caused or aggravated by any events in active service; or, if not, (b) was caused or is aggravated by service-connected PTSD. A complete explanation of the relevant facts and circumstances is required. If an opinion cannot be provided, the examiner must clearly so state and explain the reasons for such conclusion , such as insufficient evidence, shortcomings in the state of medical knowledge, or lack of training or experience of the examiner. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for psychiatric disability other than PTSD, to include depression and/or panic disorder, in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).