Citation Nr: 1322068 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 95-37 669 ) 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 a sleeping disorder, to include as secondary to service-connected fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1980 and from April 1982 to June 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran testified before a hearing officer at the RO in May 2004. A transcript of the hearing is of record. In May 2006, the Board remanded the claim for entitlement to service connection for a psychiatric disorder for additional development. The claim returned to the Board and was denied in a June 2012 decision. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In December 2012, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested that the portion of the June 2012 decision that denied service connection for a psychiatric disorder be vacated and remanded. The appeal has now returned to the Board for further appellate action. In August 2012, the Veteran submitted a VA medical record documenting complaints and treatment for shoulder and arm pain at the San Juan VA Medical Center (VAMC). Correspondence accompanying the medical evidence stated that it was submitted in support of a claim; however, the Veteran did not specify the type of claim he was filing. The Board notes that the Veteran is currently service-connected for a right shoulder disability and has previously been denied service connection for a left shoulder disability. The claim referenced by the Veteran has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action to include clarifying the specific claim filed by the Veteran. 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 In accordance with the parties' December 2012 JMR, a remand is necessary to provide the Veteran an additional VA psychiatric examination to determine the nature and etiology of the claimed psychiatric disorder. Although the record currently contains an October 2011 VA examination report and medical opinion, the parties agreed that the October 2011 VA examination was inadequate. The JMR found that the October 2011 VA examination improperly relied on the lack of consistent medical treatment to find that a temporal relationship did not exist between the Veteran's mood disorder and active duty service. Additionally, the VA examiner did not consider the Veteran's lay statements in support of his claim. Therefore, an additional VA examination and medical opinion are required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA psychiatric examination to assess the current nature and etiology of the claimed psychiatric disorder, to include a sleeping disorder. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file, including the service treatment records and the Veteran's own lay history, the examiner is requested to offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed psychiatric disorder, to include any sleeping disorder, is etiologically related to the Veteran's active service. The examiner should also determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed psychiatric disorder is caused or aggravated by the Veteran's service-connected fibromyalgia. A complete rationale (i.e. basis) should be provided for all expressed opinions. The examiner should reference specific evidence in the claims file, including the Veteran's statements linking his psychiatric symptoms to active duty service and/or fibromyalgia and his reported history of symptoms. 2. Readjudicate the claim for service connection for a psychiatric disorder. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). _________________________________________________ MILO H. HAWLEY 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).