Citation Nr: 1321289 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 05-31 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and D.F. ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Appellant was a member of the New Jersey Army National Guard (ARNG) from July 1975 to January 1977, who had a period of active duty for training (ACDUTRA) from July 1975 to May 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2004 of the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). The Appellant and his brother appeared at a hearing before the undersigned Veterans Law Judge in June 2008. A transcript of the hearing is in the file. This claim has been before the Board numerous times; as the Board is again remanding the claim, no recitation of the prior history is necessary. As the Board has previously granted the Appellant's claim for service connection for a left shoulder disability, that claim is no longer before the Board. 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 For two reasons, the Appellant's claim must be remanded. First, in a March 2009 VA treatment record, the Appellant indicated that he is receiving Social Security disability benefits. As no attempt to obtain these records has been made, VA must obtain these records on remand. Second, in its most recent remand, the Board directed that the Appellant undergo a VA examination; an examination was conducted in March 2013. The examiner concluded that the Appellant did not currently suffer from posttraumatic stress disorder or any other Axis I condition. This examination and the conclusions it contains are inadequate. Though the examiner from the March 2013 examination found that the Appellant was not currently suffering from any psychiatric disorder, there is a current disability for VA purposes when a claimant has a disability at the time a claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). A review of the Appellant's VA treatment records show that, at various times during the appeal period, he has been diagnosed as suffering from PTSD, dysthymia, and depression. The examiner did not explain whether these diagnoses were invalid, or whether these diagnoses could be connected to his period of ACDUTRA or any incidents therein. The claim must be remanded in order that these questions are answered. Accordingly, the case is REMANDED for the following actions: 1. Contact the SSA and request that it provide documentation of the Appellant's claim for disability benefits and copies of all records developed in association with that agency's decision. 2. Schedule the Appellant for a VA mental disorders examination. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to answer the following questions: a) Does the Appellant currently suffer from PTSD or any other psychiatric disorder? b) Has the Appellant suffered from a psychiatric disorder at any time during the appeal period (i.e., from February 2003 to the present)? If it is determined that he did not suffer from any psychiatric disorder, explain why not, including a discussion of all the psychiatric diagnoses of record. c) Is it at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder or any psychiatric disorder diagnosed during the course of the Appellant's appeal is related to or aggravated by his period of ADCUTRA or any incident therein? The examiner must discuss the Appellant's initial mental health problem and treatment in November 1975. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Appellant and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has 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). _________________________________________________ RONALD W. SCHOLZ 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).