Citation Nr: 1318100 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 07-24 273A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active duty from February 1968 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Where a veteran's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. Id. When a claimant makes a claim, he seeks service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Id. It thus is appropriate here for the Board to consider any other psychiatric diagnoses. In December 2010, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. After completing additional development, the AMC continued to deny the claim (as reflected in a January 2012 supplemental statement of the case (SSOC)), and returned the matter to the Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for his psychiatric symptoms which he asserts had their onset during military service. As noted in the Introduction, this case was previously before the Board in December 2010. At that time the Board issued remand directives that instructed the AMC/RO to obtain outstanding treatment records from the Minneapolis VA Medical Center (VAMC), dated since July 2007. The AMC/RO was also instructed to schedule the Veteran for an appropriate examination to determine the nature, extent, and etiology of any acquired psychiatric disorder, including PTSD, that he may have. The AMC/RO requested and obtained treatment records from the Minneapolis VAMC from July 2007 to November 2011. The record also indicates that the Veteran was afforded a VA examination in February 2011, which found that he does not have a diagnosis of PTSD that conforms to DSM-IV criteria. Rather, the Veteran received Axis I diagnoses of a major depressive disorder, alcohol and dependence and cannabis abuse both in full sustained remission, a panic disorder without agoraphobia, and a personality disorder, none of which were determined to be caused by, or a result of, military trauma. [In this regard, the Board notes that outpatient treatment records also illustrate diagnoses of an anxiety disorder.] Thus, the Board finds substantial compliance with its December 2010 remand directives as they pertain to the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD on a direct basis. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). However, the Veteran's representative now argues that the agency of original jurisdiction (AOJ) failed to consider all reasonable theories for service connection and should consider whether the Veteran's major depressive disorder is secondary to, or caused by, his recently service-connected heart disease. See Written Brief Presentation dated March 2013. [The Board notes that, while the current appeal was on remand, service connection was granted for coronary artery disease with a history of right-sided congestive heart failure, associated with herbicide exposure, rated as 30 percent disabling from May 9, 2007. See August 2011 rating decision.] When determining service connection, all theories of entitlement, direct and secondary, must be considered by the Board if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). However, claims which have no support in the record need not be considered by the Board, as the Board is not obligated to consider "all possible" substantive theories of recovery. That is, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Here, the Veteran has offered no lay evidence to the effect that his major depressive disorder is in any way related, by causation or aggravation, to his service-connected coronary artery disease with a history of right-sided congestive heart failure. That being said, in order to afford the Veteran every opportunity to substantiate his claim and to assure that the duty to assist has been met, the Board will develop and consider the Veteran's claim under the theory of secondary service connection. Therefore, given the absence of an adequate medical opinion addressing whether a medical nexus exists between the Veteran's diagnosed psychiatric disorders and any service-connected disability, a VA medical opinion is needed. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that 38 C.F.R. § 3.310(a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability). Also on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). 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 pertinent). In this regard, the Board notes that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his physical VA claims folder or Virtual VA folder) is dated in November 2011. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for an acquired psychiatric disorder, as secondary to a service-connected disability. 2. Obtain and associate with the claims file copies of all clinical records that are not already in the claims file. The Board is particularly interested in records of such treatment that he may have received at the Minneapolis VAMC since November 2011. Document all efforts to obtain such records. If any pertinent evidence identified by the Veteran is unavailable, inform him and request that he obtain and submit it. If any records are unavailable/do not exist, and further efforts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the Veteran's physical VA claims folder or his Virtual VA folder, as appropriate. 3. Obtain complete copies of any determination(s) awarding SSA disability benefits to the Veteran as well as the medical records that served as the basis for any such decision(s). If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. All such available documents should be associated with the Veteran's physical claims folder or his Virtual VA folder, as appropriate. 4. Then, schedule the Veteran for a VA psychiatric 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. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. Based on an examination of the Veteran and comprehensive review of the claims file, the examiner should address the question of whether it is it at least as likely as not, i.e., a 50 percent probability or greater that the Veteran's previously diagnosed major depressive disorder, panic disorder, and anxiety disorder-as well as any other psychiatric disability shown on current examination--are caused or aggravated by his service-connected coronary artery disease, with a history of right-sided congestive heart failure. If no causation or aggravation is found, the examiner should specifically indicate so and explain why that is. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The conclusions of the examiner should reflect review of the claims folder, and the discussion of pertinent evidence. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 5. After completing the requested action, as well as any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, including PTSD, on direct and secondary bases. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate SSOC and give them an appropriate time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).