Citation Nr: 1322604 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-23 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as major depressive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to September 1965. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a January 2011 Board personal hearing in Newark, New Jersey (Travel Board). The hearing transcript has been associated with the claims file. 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 Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). The Veteran was afforded a VA psychiatric examination in September 2009. While the VA examiner discussed whether there was a relationship between major depressive disorder and the Veteran's current medical conditions, the examiner did not provide an opinion as to addressing the Veteran's claim that his psychiatric disorder is etiologically related to service, to include symptoms of nervousness identified in service treatment records. Since the September 2009 VA examination, the Veteran has provided additional evidence, to include private treatment records which identify psychiatric treatment with medication management since 1989. He also provided additional testimony during in January 2011, identifying stress and symptoms of nervousness in service. He indicated that his current psychiatric medications included medication for the treatment of "nerves" and reported that he was nervous in service. For these reasons, the Board finds that the September 2009 VA examination is inadequate for evaluation purposes and a remand for a supplemental VA opinion is necessary to assist in determining if major depressive disorder is related to service. On remand, the examiner should specifically discuss an August 1965 treatment report associated with service treatment records in which the Veteran described "worries" or "nervousness" in service. While he was evaluated for epigastric pain at that time, in the clinical treatment report, he stated that under pressure, he had worries, that his stomach troubles were aggravated by worries, and that he indicated that he had financial worries related to his mother's house recently being burned down. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the East Orange VA Medical Center since November 2009. 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. 2. Refer the claim to an appropriate VA clinician for a supplemental medical opinion to determine if the Veteran's major depressive disorder is etiologically related to service. Another examination is not required; however, if the clinician indicates that he or she cannot respond to the Board's question without an examination, an examination should be schedule. The record, to include a copy of this Remand, must be made available to the clinician for review. The clinician should state, based on the available evidence, whether it is at least as likely as not that major depressive disorder was incurred in service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete rationale for his or her opinion with references to the evidence of record. The examiner should specifically comment on: (a) Lay testimony from the Veteran in January 2011, noting that he is competent to report symptoms of nervousness in service. (b) Findings from an August 1965 clinical treatment note, showing that the Veteran described various "worries" in service which aggravated his stomach troubles; and (c) Post-service private treatment records dated from 1987 to 2008 which reflect treatment for psychiatric complaints with medication management since 1989. 3. Review the examination report to ensure that it is in complete compliance with this remand. If deficient in any manner, implement corrective procedures. 4. After all development has been completed, review the case again based on the additional evidence. If the benefits sought are not granted, furnish the Veteran and his representative with a supplemental statement of the case, and should give him a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). He 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). _________________________________________________ L. HOWELL 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).