Citation Nr: 1318216 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-37 138A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for psychiatric disability claimed as anxiety. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from October 1982 to October 1984. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in September 2008 denying service connection for generalized anxiety disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U. S. Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for posttraumatic stress disorder (PTSD) should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability, "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. The Board has broadened the appealed psychiatric disability claim accordingly. REMAND Recent VA treatment records have included diagnoses variously of mood disorder not otherwise specified, substance-induced mood disorder, depression, major depressive disorder, and an anxiety disorder not otherwise specified. Based on these various diagnoses, remand is required for appropriate development of the now broadened claim for service connection for a psychiatric disability. The Veteran contends that he developed an anxiety disorder related to incidents in service. The incidents the Veteran identified consist of losing control of a military vehicle and crashing into a fence, and testing positive and being treated for tuberculosis. The Veteran's service treatment records and service examination records do not reflect complaints of psychiatric symptoms or findings of psychiatric difficulties. Service treatment records do reflect that the Veteran initially tested positive for tuberculosis in October 1982, and despite a negative test in September 1983, being prescribed a course of prophylactic isoniazid (INH) treatment beginning in approximately September 1983. The claims file does not contain records from years immediately following service, and hence the presence of psychiatric disability immediately following service cannot be established on the basis of any such proximate-to-service records. Post-service records reflect difficulties over recent years with polysubstance abuse, with recent VA mental health treatment records also including Axis I diagnoses of alcohol abuse or dependence, and polysubstance abuse or dependence. Treatment records reflect two prior 90-day substance abuse rehabilitation programs. A record of VA mental health residency from March to April of 2010 notes the Veteran's current habit of consuming a pint of alcohol daily. Severe environmental stressors were noted including homelessness, legal issues, unemployment, and domestic/marital issues. In a February 2010 statement, the Veteran's representative argued that the Veteran's anxiety disorder began in 1984 (sic) when he tested positive for tuberculosis. In May 2013 the Veteran submitted statements from two treating VA clinicians. The first, from a social worker, dated in April 2013, informs that he has treated the Veteran since April 2010. The social worker notes the Veteran's history of being exposed to tuberculosis in service and receiving medication for this for approximately a year thereafter, as well as his history of an in-service incident involving a run-away ammunitions carrier. The social worker recounted the Veteran's self-reported history of being a good student and employed prior to service, but having difficulty pursuing goals as a student following service and having panic attacks, with anxiety becoming pervasive in his life. The social worker opined that it was "more likely than not" that the Veteran's "anxiety disorder came from military service." The second opinion, by a treating VA primary care physician, also dated in April 2013, notes the same two self-reported incidents in service, and notes the Veteran's assertion that the diagnosis of tuberculosis, the one-year treatment, and the lack of military support all "contributed to create a major life traumatic change." The physician opined that the noted in-service incidents, "played a key role in the onset and exacerbation of [...] a chronic anxiety disorder [....]" In these April 2013 opinion letters, neither the VA social worker nor the VA primary care physician noted or addressed the Veteran's long history of polysubstance abuse and alcohol abuse following service, and neither considered questions raised by the record of intercurrent causes (subsequent to service) of the Veteran's psychiatric difficulties. The Veteran's severe environmental stressors as identified in recent records were also not reflected in these treating clinicians' opinion letters. The Board accordingly finds that these April 2013 opinions, while supportive of the Veteran's claim, appear not to be fully informed, and hence are insufficient to support service connection for the Veteran's claimed anxiety disorder. The Board notes that VA must provide a medical examination or obtain medical opinion 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 that certain diseases manifested 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), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The current medical records, the Veteran's statements and testimony, and the submitted opinion letters provide sufficient evidence supportive of all these elements to warrant obtaining a VA examination addressing the claim. At his May 2013 hearing the Veteran recounted a history of significant difficulty with anxiety in months or years immediately after separating from service, which manifested in his inability to work indoors, so that he took a messenger job, and his inability to sit in a classroom to take computer classes in which he had enrolled. Records to support the presence of persistent anxiety difficulties shortly after service may support the claim, and hence should be sought upon remand. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran all required notice in response to the claim for service connection for psychiatric disability, other than generalized anxiety disorder. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include records of VA outpatient, inpatient, and residency treatment, as well as social worker records. 3. The Veteran should be asked to submit any additional evidence he may have supportive of the presence of anxiety symptoms or other psychiatric symptoms in service and in the years immediately following service, such as records from courses begun but not completed, records documenting employment difficulties, and lay statements by those who knew him at the time and witnessed his difficulties or his report at the time of his difficulties with anxiety or with other psychiatric symptoms. 4. Then, afford the Veteran 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 the claim. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should considered the Veteran's self-reported history of incidents in service, his post-service history, and his assertions of anxiety currently attributable to in-service incidents. The examiner should also consider the Veteran's post-service social and occupational history, as well as his documented history of psychiatric care, hospitalization, mental health residency, and rehabilitation following service. The examiner should specifically address the opinion letters provided by a treating VA social worker and a treating VA primary care physician, both dated in April 2013 and contained within the claims files. With respect to each acquired psychiatric disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated during service or is otherwise etiologically related to the Veteran's active service. For purposes of the opinion, the examiner should assume that the Veteran is credible. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 5. Undertake any other indicated development. 6. Thereafter, readjudicate the Veteran's claim. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case (SSOC) and an appropriate opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the 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). _________________________________________________ Shane A. Durkin 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).