Citation Nr: 1318061 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-41 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to dermatitis and pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to August 1972 and from February 1974 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Although the claim was originally characterized as entitlement to service connection for depression, the Veteran has also been diagnosed with adjustment disorder and psychological factors affecting medical condition. To adequately reflect the claim, the issue has been amended accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of Virtual VA reveals no records relevant to the claim on appeal. 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 claims that he has depression or other psychiatric disorder as a result of his service-connected dermatitis and pseudofolliculitis barbae. The Veteran's medical records show that he has struggled with significant skin disorders for many years, and he is currently service connected for dermatitis and pseudofolliculitis barbae with an evaluation of 30 percent, due to VA examination findings that the condition affects 20 to 40 percent of his exposed skin area. In January 2008, the Veteran was afforded a VA psychiatric examination. The Veteran reported that for the past 7 years he has felt less tolerant and more easily upset. The examiner noted that the Veteran was friendly, cooperative, and appropriately dressed, with calm mood, good memory, intact judgment, and no evidence of hallucinations, suicidal ideation, or impairment in thought processes. The examiner found that the Veteran did not have any psychiatric disorder. Review of the record reveals that additional VA treatment records that have been added since the time of the Veteran's January 2008 examination. As such a new examination is needed that adequately addresses all of the Veteran's psychiatric symptoms, complaints, and treatment. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the VA examiner was apparently unaware that the Veteran has received psychiatric treatment. VA treatment records added to the claims file in September 2009 show that since the time of the January 2008 VA examination, the Veteran has been undergoing psychiatric counseling at the Durham VA Medical Center (VAMC). The Veteran also reported in VA counseling sessions that he has undergone counseling in the past, although no record of these prior counseling sessions are currently of record. In August 2008 a VA physician diagnosed the Veteran with adjustment disorder, and the clinical psychologist overseeing the Veteran's group counseling has diagnosed the Veteran with psychological factors affecting medical condition. The Board notes that while this diagnosis descriptor is vague, this is a valid diagnosis under the American Psychiatric Association's Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM-IV), and encompasses general medical disorders which are adversely affected by psychological factors. The VA treatment records currently contained in the case file do not include the Veteran's initial evaluation by the clinical psychologist who provided this diagnosis, and it is therefore unclear which medical condition the diagnosis is referring to. However, as the Veteran has discussed his skin condition and its affect on him psychologically during his counseling sessions, it is possible that his service-connected skin disorder is the condition to which the diagnosis refers. Notes from an August 2008 counseling session show that the Veteran "had difficulty dealing" with his skin disorder and was anxious about how he is perceived by others. Additionally, the examiner failed to discuss the Veteran's service-connected skin disorders and any effect they may have on his psychologically. While the examiner mentioned that the Veteran has difficulty working due to problems with his back and legs, there is no mention of the Veteran's service-connected skin disorders or any indication that the examiner even discussed this with the Veteran. Accordingly, the RO/AMC should arrange for the Veteran to undergo an additional VA psychiatric examination performed by a qualified psychiatrist or psychologist. The RO/AMC should forward the complete claims file to the examiner for review. Following a review of the entire record, the examiner should offer an opinion regarding the Veteran's psychiatric diagnoses, their etiology, and any connection to active duty service or to his service-connected skin disabilities, taking into consideration the Veteran's VA treatment records and lay statements regarding his symptoms and providing a full rationale for the opinion based on all of the evidence of record. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as this claim will be considered on the basis of the evidence of record). 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. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to her by the pertinent VA medical facility. While this matter is on remand, the RO/AMC should also give the Veteran another opportunity to present any more recent information or evidence pertinent to the claim. The record shows that the Veteran has been receiving regular treatment for his skin disorder through private medical providers, but VA has not requested private records for the Veteran since March 2007. The Veteran has also reported to his VA psychologist that he has received other counseling in the past and that he has been prescribed the drug clonazepam for psychiatric disorders, but apparently not through VA. The RO/AMC should request that the Veteran provide any records (or necessary releases to obtain records) related to previous psychiatric treatment or to disorders of the skin. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The record also indicates that the Veteran has been receiving regular psychiatric counseling at the Durham VAMC. Currently, the claims file contains his VA treatment records from December 2005 to December 2006, December 2007 to January 2008, and August 2008 to July 2009. As there may be additional treatment records directly pertinent to the current issue, all outstanding VA treatment records from the Durham VAMC should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should send to the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record, including private treatment for psychiatric or skin disorders prior to and since March 2007, to the extent not already on file. After the Veteran has signed any appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. He should be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO/AMC should obtain from the Durham VAMC all outstanding, pertinent records of treatment of the Veteran related to skin disorder or psychiatric treatment from December 2006 to December 2007, January 2008 to August 2008, and July 2009 to the present. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) and associate all records with the claims file. Records of any initial psychiatric treatment should be identified by the appellant and obtained as possible. 3. After associating all outstanding pertinent records related to the Veteran's claim, schedule a VA psychiatric examination by a psychiatrist or psychologist. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The psychiatric examiner should offer an opinion as to whether the Veteran has any currently diagnosed psychiatric disorder. If no current psychiatric disorder is found, the examiner should discuss whether the Veteran had any psychiatric disorder since December 2006, during the course of the current claim. The examiner should reconcile the Veteran's diagnoses for adjustment disorder and psychological factors affecting medical condition, as well as the January 2008 VA examination findings, in which the examiner found that the Veteran did not have any current diagnoses. For every psychiatric diagnosis found, the examiner should state whether it is at least as likely as not (50 percent or more probability) that the Veteran's psychiatric disorder is a result of any incident in service, began to manifest during service, or is etiologically related to the Veteran's active duty service in any way; or whether it is at least as likely as not (50 percent or more probability) that it has been caused or aggravated (permanently made worse) beyond the disorder's natural progression by his service-connected dermatitis and pseudofolliculitis barbae. In rendering this opinion, if the etiologies of the diagnosed disorders are attributed to multiple factors/events, the examiner should specify which symptoms/diagnoses are related to which factors/events. A complete rationale for all opinions provided must be given. If the examiner is unable to address any inquiry sought above, then he or she must fully explain why. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 5. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 6. After completing the requested actions, the RO/AMC should readjudicate the claim in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a supplemental statement of the case. An appropriate period of time shall be allowed for response. The appellant 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 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 D. LYON 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).