Citation Nr: 1320805 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-36 757 ) 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, inclusive of posttraumatic stress disorder (PTSD), to include as secondary to service-connected coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. By its decision of December 5, 2011, the Board of Veterans' Appeals (Board), in pertinent part, denied entitlement of the Veteran to service connection for an acquired psychiatric disorder, including PTSD. An appeal followed to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal thereafter jointly moved the Court to vacate the Board's decision and remand the matter to the Board for further review. The Court by its January 2013 order granted the parties' motion and the case has since been returned to the Board for further consideration. Notice is taken that the Veteran was afforded a hearing before the Board, sitting at the RO, in March 2011. That hearing, a transcript of which is of record, was conducted by a Board employee that has since retired from Federal service. Notice of this fact was provided to the Veteran through the Board's correspondence of March 2013 and, at that time, he was offered the opportunity to appear at another hearing. In response, the Veteran by return mail received by the Board in early April 2013 indicated that he did not wish to appeal at another hearing and that it was his request for the Board to consider his case on the basis of the evidence of record. In light of the foregoing, no further action to arrange for the conduct of another hearing is necessitated. This appeal is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The basis of the joint motion in the appeal before the Court was that the Board had erred in failing to adjudicate fully the question of the Veteran's entitlement to service connection for an acquired psychiatric disorder and, particularly, as to those entities other than PTSD. The parties cited the Veteran's own complaints of nightmares, flashbacks, anger outbursts, anxiety and panic attacks, insomnia, and phobias and noted that prior treatment notes from January and September 2010 contained diagnoses of a mild cognitive impairment, anxiety disorder, adjustment disorder, and agoraphobia. Reference was also made by the parties to the March 2011 request by the Veteran's representative, as set forth at a Board hearing, that the Veteran's psychiatric disorders other than PTSD be evaluated to determine whether they were related to military service, to include as secondary to a service-connected heart disorder. The record reflects that the RO's development of the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder has to date been limited to the more restricted question of entitlement to service connection for PTSD. Per Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (although the appellant'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 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 the Secretary obtains in support of the claim), the issue before the Board is expanded to include any acquired psychiatric disorder and remand is required for initial development and adjudication of this expanded issue. In addition, notice is taken that the Veteran has advanced a claim of service connection for an acquired psychiatric disorder, secondary to a service-connected heart disorder, and remand is necessitated as well for initial development and adjudication of that question. Accordingly, this matter is REMANDED for the following actions: 1. Undertake any and all actions necessary for compliance with the VA's duties to notify and assist the Veteran with respect to his expanded claim of entitlement to service connection for any acquired psychiatric disorder, including PTSD, to include as secondary to service-connected coronary artery disease. 2. Obtain any pertinent records of VA medical treatment, not already on file, for inclusion in the Veteran's VA claims folder. 3. Thereafter, afford the Veteran a VA psychiatric examination in order to ascertain the nature and etiology of any currently shown acquired psychiatric disorder and to determine the relationship (if any) of any indicated acquired psychiatric disorder to his service-connected coronary artery disease. His VA claims file should be made available to the examiner in conjunction with the examination and the report of that examination should reflect whether the claims folder was made available and reviewed. That examination should entail a complete medical and psychiatric history, a thorough mental status evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses involving any acquired psychiatric disorder should then be set forth. The VA examiner is asked to address the following questions, offering a complete rationale for each opinion provided: a) Is it at least as likely as not (50 percent or more probability) that any acquired psychiatric disorder, including but not limited to PTSD, originated during his military service or is otherwise attributable to service or any event therein? b) Is a psychosis shown to have been manifested during the one-year period immediately following the Veteran's discharge from active duty in September 1967, and, if so, how and to what degree any such psychosis was manifested should be fully detailed. c) Is it at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder, including but not limited to PTSD, of the Veteran was caused or aggravated by his service-connected coronary artery disease? The examiner should comment on whether the impairment associated with the heart disorder resulted in depression or similar psychiatric symptomatology. The examiner should also address a theory raised by the Veteran's representative that the heart disorder (or associated surgeries) could have caused lack of oxygen to the brain, and thereby caused a cognitive disorder. If it is determined that any such disorder was worsened by a service-connected disorder, to the extent that it is possible the examiner should indicate the approximate degree of disability or baseline severity (e.g., mild, moderate, severe) of the disorder before the aggravation. Use by the VA examiner of the at least as likely as not language in responding is requested. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus, service incurrence, or causation as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. The VA examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 4. Lastly, readjudicate the issue remaining on appeal, based on all of the evidence of record and all governing legal authority, and if the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an appropriate period of time to respond, before the record is returned to the Board for further review. The Veteran need take no action until otherwise notified. The Veteran 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 D. MARTIN 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).