Citation Nr: 1320964 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-35 896 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to March 1967. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision that, in pertinent part, denied service connection for depression. The Veteran timely appealed. In a June 2011 decision, the Board denied service connection for depression. The Veteran appealed the June 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Memorandum Decision, the Court vacated the portion of the Board decision that denied benefits for depression, and remanded that portion to the Board for further development and readjudication. Judgment was entered later that same month. Thereafter, the case was returned to the Board. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND In June 2013, Veteran submitted additional evidence directly to the Board and specifically declined to waive initial consideration of the evidence by the RO or AMC. The evidence is pertinent to the issue on appeal, and is accepted by the Board; and is referred to the RO or AMC for review. 38 C.F.R. § 20.1304 (2012). Moreover, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). As referenced in the Memorandum Decision, VA's duty to assist by providing a nexus medical examination has been triggered. See, e.g., Duenas v. Principi, 18 Vet. App. 512, 517-18 (2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the Veteran contends that his depression began when he was stationed at McGuire Air Force Base during active service. He indicated that he was sent to represent the Air Force at a funeral for his roommate, who was killed in a motor vehicle accident in the winter of 1966. In the following spring, the Veteran was involved as a passenger in a bus accident with a car, and he witnessed "the first death of a human being" in his life. The Veteran reported sustaining a bump on his head and a cut under his chin, and he witnessed the suffering of the car's passenger. When asked a couple of days later if he was alright, the Veteran replied that he was alright but mentally he will never forget. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Service treatment records do not reflect any findings or complaints of depression. On a "Report of Medical History" completed by the Veteran in November 1966, he checked "no" in response to whether he ever had or now had depression or excessive worry. His separation examination in November 1966 specifically noted no evidence of psychosis or neurosis. The post-service treatment records show that the Veteran first reported in June 1986 that his depression began while in active service, and that he felt depressed because there was not much to do. The Veteran indicated that he experimented with Marijuana, and that his depression continued. Following active service, the Veteran reported that he began having more distressing problems, including hearing voices; and he became more socially withdrawn. Records show that the Veteran was hospitalized on several occasions, and diagnosed with chronic paranoid schizophrenia. Social Security records reflect that a psychiatric review conducted in March 1986 revealed the presence of a schizophrenic disorder. At that time there was evidence of neither an affective disorder nor an anxiety disorder. Private treatment records, dated in June 1988, include a psychiatric discharge summary and final diagnoses of schizophrenia, paranoid; depression; and overweight. VA treatment records, dated in 1993 and 1994, show that the Veteran denied symptoms of major depression or mania. VA notes of an individual therapy session, dated in September 2004, reveal no evidence of a major depressive disorder, mania, paranoia, or delusional thinking. The lack of contemporaneous medical evidence is not an absolute bar to the Veteran's ability to prove his claim of entitlement for disability benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). As referenced by the Court in the Memorandum Decision, the Board is required to analyze the credibility and probative value of the evidence of record. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has a current depressive disorder that either had its onset during service or is related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, please obtain any additional treatment records, dated from July 2005 to the present, pertaining to a depressive disorder; and associate them with the claims file (physical or electronic). 2. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of depression, and the likely etiology of the disease or injury. For any current disability manifested by depression, the examiner is requested to determine whether it at least as likely as not (50 percent probability or more) either had its onset in active service, or is the result of disease or injury incurred or aggravated during active service-specifically, to include the in-service witnessing of traumatic injuries and death sustained by passengers in a motor vehicle accident, as reported by the Veteran, and the Veteran's claim of continuing depression since then. The examiner should reconcile any opinion with the service treatment records (described above); any additional medical treatment records associated with the claims file; and with the Veteran's credible statements. The examiner should provide a rationale for the opinions. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 3. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the claims file to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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 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. PAPPAS 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).