Citation Nr: 1321763 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 07-06 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disability, to include an anxiety disorder and depression. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from February 1984 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In a February 2011 decision, the Board reopened and remanded the issues of service connection for residuals of a right leg injury and a psychiatric disability, to include anxiety disorder. The September 2005 rating decision also granted service connection for migraine headaches and assigned a noncompensable evaluation, effective May 9, 2003. A January 2010 rating decision increased the rating to 30 percent, effective November 6, 2009. In a May 2012 rating decision, the RO increased the evaluation for the Veteran's migraine headaches to 50 percent disabling, effective May 9, 2003. In August 2012, the Board denied service connection for a right leg/knee disability and denied an evaluation in excess of 50 percent for migraine headaches. The issue of entitlement to service connection for a psychiatric disability, to include an anxiety disorder and depression, was remanded for additional development. In September 2010, a Travel Board hearing was held before a Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The VLJ who conducted the September 2010 hearing is no longer at the Board. The Veteran was provided the opportunity to testify at another hearing before another VLJ. 38 C.F.R. § 20.717. In August 2012, however, the Veteran declined to appear at another hearing. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case the Veteran has asserted that service connection is warranted for a psychiatric disability, to include an anxiety disorder. Post-service treatment records show diagnoses of depression, anxiety disorder, and dysthymic disorder. With respect to an in-service injury or disease, the Veteran contends that his current disabilities are related to his having to carry a weapon during service. According to the Veteran, he never felt comfortable having to carry a weapon and although he requested to cross train for other positions, he continued to be assigned to the gate shack, where he had to carry his gun and was never allowed to cross train. The Board notes that the Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing anxiety in service as a result of having to carry guns.). Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran's statements are further corroborated by his service treatment records which show that in March 1985, the Veteran reported not wanting to carry a weapon or be in the field any longer and that he had felt like that since coming onto the base. The clinical psychologist's assessment was that of job problems. The record shows that on several other occasions between 1985 and 1986, the Veteran was evaluated by clinical psychologists, who assessed him as having occupational problems, immature traits, personality traits, and/or oversensitivity. The record shows that the Veteran was afforded a VA examination in June 2005 to determine the nature and etiology of his current psychiatric condition. In reviewing the examination report, the Board, in August 2012, observed that the examiner only provided an opinion as to whether any current anxiety was related to the Veteran's in-service psychiatric complaints. The examiner failed to provide an opinion regarding whether the Veteran's other diagnosed psychiatric disorders of record (i.e., major depression, depression, and/or dysthymic disorder) are related to the Veteran's in-service psychiatric complaints. Therefore, the Board found that the June 2005 VA Examination was inadequate and remanded the issue for a new VA examination to ascertain the nature and etiology of the Veteran's current psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A new examination was provided in October 2012. The Veteran was diagnosed as having adjustment disorder with depressed mood, anxiety disorder, and opiod dependence. The examiner stated that the Veteran's anxiety symptoms were not specific enough to meet a specific anxiety based disorder, and that they may be related to medical conditions and/or mild depression. The examiner also noted that the Veteran's depressive symptoms had an onset that corresponded to a severe injury to his daughter and are clearly attributable to adjustment reaction. Test results indicated minimal depression and mild anxiety. The examiner noted the psychiatric treatment in service and the Veteran's complaints related to carrying a weapon in service. The examiner stated that the diagnosis made at the time, occupational problem, was not a psychiatric condition. The examiner noted that the Veteran was able to complete three further years of military service without further psychiatric evaluation or treatment. The examiner then opined that, given this information and the lack of a clear relationship between the Veteran's current anxiety and his discomfort with carrying a weapon, it was his opinion that it was unlikely that the Veteran's current symptoms are related to his military experience. Based on the foregoing, the Board finds that this matter should again be remanded. Although the examiner indicated that the Veteran's anxiety symptoms were unlikely related to military service, the examiner did not diagnose or specifically address the Veteran's other diagnosed disabilities (i.e., major depression, depression, and/or dysthymic disorder) found in his medical records. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Nor did the examiner elaborate on the comment that the Veteran's anxiety symptoms may be related to medical conditions. In this regard, the Board notes that the Veteran has multiple service-connected disabilities, and is rated at a combined 70 percent evaluation. Upon remand, the Veteran's claims file should be forwarded to the examiner who performed the October 2012 examination. The examiner should be specifically requested to (i) identify all psychiatric disabilities diagnosed since January 2005 (the current appeal period), and (ii) give an opinion regarding whether any psychiatric disability diagnosed since January 2005 had its onset in service, within one year of service, is otherwise the result of active military service, or whether such psychiatric disorder was caused by or is secondary to any or all of the Veteran's service-connected disabilities. If the examiner disagrees with diagnoses found in the Veteran medical records and finds that the Veteran did not have such a diagnosed disability since January 2005, the examiner should clearly explain this finding. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Upon remand, the Veteran should be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. Any VA treatment records should also be updated. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Arrange for the Veteran's claims file to be forwarded to the examiner that performed the October 2012 examination and report in order to answer the following questions. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Based on his/her review of the case, the examiner is specifically requested to: (i) identify all psychiatric disabilities diagnosed since January 2005, and (ii) give an opinion regarding whether any psychiatric disability diagnosed since January 2005 had its onset in service, within one year of service, is otherwise the result of active military service, or whether such psychiatric disorder was caused by or is secondary to any or all of the Veteran's service-connected disabilities. If the examiner disagrees with diagnoses found in the Veteran medical records and finds that the Veteran did not have such a diagnosed disability since January 2005, the examiner should clearly explain this finding. In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ James L. March 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).