Citation Nr: 1320510 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-07 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as delirium, depression, and mood disorder, to include as secondary to service-connected back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2007 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In September 2009, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the San Juan RO. A transcript of this hearing was prepared and associated with the claims file. A March 2012 letter informed the Veteran that his requested Travel Board hearing was scheduled in late March 2012. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board observes that the Veteran has filed multiple claims for entitlement to service connection for mood disorder and delirium, to include as secondary to a service-connected back disability. The United States Court of Appeals for Veterans Claims (Court) has recently determined that when a claimant makes a claim of entitlement to service connection for a psychiatric disability, he is seeking service connection any acquired psychiatric disability regardless of how those symptoms are labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has changed the issues to entitlement to an acquired psychiatric disorder to include mood disorder, depression, and delirium, as reflected on the title page. 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 he has a psychiatric disorder caused or aggravated by his service-connected back disability. Service treatment records are negative for complaints or diagnosis of a psychiatric disorder. Post-service, the first instance of psychiatric evaluation is in October 1994. At that time, the Veteran developed a condition of mental anguish compatible with related emotional diagnosis due to family problems. A January 2002 private discharge summary indicated the Veteran has severe depression and was having difficulty managing decline in health. A March 2003 private treatment record included a diagnosis of depression due to family problems. A December 2006 VA examiner found that the Veteran's claimed mental problems were not caused by or a result of a service-connected back disability. The diagnoses were substance induced mood disorder with psychotic features, cocaine abuse, and cannabis abuse. The examiner based her opinion on a review of the claims file and medical records and taking a psychiatric history and exam. The examiner found that the Veteran started using cannabis at the age of 14 and cocaine at the age of 18, several years before joining the military; substance abuse was not related to the Veteran's service-connected conditions in terms of anatomy, pathophysiology, or etiology; and there is no evidence regarding treatment, complaints, or diagnosis of substance abuse in the claims folder or service medical records. Though the examiner determined that the Veteran's psychiatric disorder was not due to or incurred in active service, the examiner did not give a specific opinion as to whether the Veteran's psychiatric disorder was worsened or aggravated by his service-connected back disorder. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In view of the foregoing, the Board finds the RO/AMC should request a VA examiner to review the claims file in its entirety. The VA examiner should then offer an opinion, as to whether it is at least as likely as not that the Veteran's psychiatric disorder is caused or permanently worsened by the Veteran's back disorder. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should send the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the AMC/RO to obtain any additional pertinent evidence not currently of record, to specifically include any private or VA medical records relating to the psychiatric claim on appeal that have not yet been associated with the claims file. The AMC should also invite the Veteran to submit any pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. Associate any records received, including negative responses, with the claims file. 2. Then, the AMC/RO should request a VA examiner, different than the December 2006 VA examiner, review the entire claims file and provide an opinion whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's psychiatric disorder is caused or permanently worsened by the Veteran's back disorder. A complete rationale, with discussion of relevant evidence in the claims file and any applicable medical principles, should be provided in the addendum for each of the examiner's opinions. If the VA examiner determines that such opinions cannot be rendered without a physical examination of the Veteran, then a new VA examination to determine the etiology of the Veteran's psychiatric disorder must be scheduled. All tests and studies deemed necessary by the examiner must be performed. The VA examiner must offer an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's psychiatric disorder is caused or permanently worsened by Veteran's back disorder. A complete rationale, with discussion of relevant findings on examination, relevant evidence in the claims file, and applicable medical principles, should be given for each of the examiner's opinions. All findings, conclusions, and supporting rational should be expressed in a typewritten report. 3. After completion of the above development, the Veteran's claims should be readjudicated. If any determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 LANE 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).