Citation Nr: 1320193 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-41 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, not otherwise specified (NOS), adjustment disorder with mixed anxiety and depressed mood, dysthymia, and post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ronald Gilbert, Attorney at law WITNESSES AT HEARING ON APPEAL Appellant, spouse and friend ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1974. However, an October 1980 administrative decision detailed that the Veteran's discharge was only honorable for the periods of service from January 1969 to June 1973. He had active military service in the Republic of Vietnam (RVN) from June 19, 1969 to June 14, 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision rendered by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in December 2011. A transcript is of record. As noted on the title page, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include depression NOS, anxiety disorder, adjustment disorder with mixed anxiety and depressed mood, dysthymia, and PTSD. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In March 2012, the Board remanded the claim on appeal to the RO for additional substantive development. Specifically, to schedule the Veteran for a VA examination to determine the etiology of his claimed acquired psychiatric disorder, to include depression, not otherwise specified (NOS), adjustment disorder with mixed anxiety and depressed mood, dysthymia, and PTSD. VA examined the Veteran in January 2013. A copy of the examination report has been associated with the claims files. 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 In April 2013, subsequent to the RO's issuance of a March 2013 Supplemental Statement of the Case (SSOC) addressing the issue of service connection for an acquired psychiatric disorder, the Veteran's attorney submitted additional evidence and argument to the regional office. He maintains that statements from the Veteran's brother, daughter, and spouse were favorable to the appeal and needed to be considered. He avers that these statements are pertinent to the Veteran's claim because they discuss the onset of his psychiatric problems since his return from active service in the RVN and thereby relevant to the appeal. Neither the Veteran nor his attorney waived initial consideration of this evidence from the agency of original jurisdiction. To the contrary, the attorney mailed this evidence directly to the RO (as opposed to the AMC or the Board), indicated that the evidence was in response to the March 2013 SSOC, and specifically stated in his letter that he wanted the evidence to be reviewed. Such strongly conveys the notion that the Veteran's attorney wished for the RO to review this evidence prior Board review. Indeed, given that he is an attorney with knowledge of the VA appeals process, the lack of waiver seems purposeful. The appeal must therefore be remanded for additional procedural development. 38 C.F.R. §§ 19.31, 20.1304 (2012). Accordingly, the case is REMANDED for the following action: Readjudicate the issue on appeal with consideration of all evidence obtained since the issuance of the SSOC in March 2103. Specifically, statements prepared by the Veteran's spouse, brother and daughter, received by the RO in April 2013. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The Veteran 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 A. HERMAN 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).