Citation Nr: 1323543 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 12-17 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depression. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from February 1975 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for a mental disorder, hypogonadism, gastroesophageal reflux disease, seizures, sleep apnea, and posttraumatic stress disorder (PTSD). In November 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in June 2012. The Board notes the only copy of the VA Form 9 in the Veteran's claims file is dated by the Veteran in May 2011, but time stamped as received by VA in June 2012. The timestamp date of June 2012 would render the Substantive Appeal untimely. However, inasmuch as the RO has taken actions to indicate to the Veteran that the present issue is on appeal (including scheduling him for a Board hearing), and it took no steps to close the appeal, the requirement that there be a timely Substantive Appeal is deemed waived. See Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003) (per curiam order). In May 2013, the Veteran and his wife presented sworn testimony during a Travel Board hearing in Detroit, Michigan, which was presided over by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that the Veteran originally filed a claim of entitlement to service connection specifically for major depression, PTSD, generalized anxiety disorder, obsessive compulsive disorder, and panic attacks. Although not expressly claimed by the Veteran, the Board is expanding his original claim for service connection to include all acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). Accordingly, the issue has been recharacterized above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include major depression. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran's service treatment records are not available for their review in their entirety. Despite the lack of service treatment records, the Board finds that the Veteran and his wife have provided competent and credible written and oral statements regarding the onset of his depressive symptoms during the Veteran's last year of military service. The Board finds this lay evidence sufficient to establish an in-service event, specifically depressive symptoms. Additionally, post-service psychiatric treatment records reflect that the Veteran has been diagnosed with major depression and rule out PTSD. The Veteran claims that his in-service psychiatric symptoms resulted in his current psychiatric disability. In light of the evidence showing current psychiatric diagnoses, in-service psychiatric symptoms, and the Veteran's contention that his current psychiatric disability is the result of his military service, the Board finds that an examination and medical nexus opinion are necessary in order to properly resolve the claim of entitlement to service connection for an acquired psychiatric disorder, to include major depression. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); see also McLendon, supra. As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include major depression, must be remanded for a VA examination and opinion. As the case is being remanded, the Board will provide the Veteran another opportunity to submit any relevant private treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and ask him to identify and provide a signed release of information for any outstanding psychiatric treatment records from Dr. C. R. or other facilities or treatment providers that are relevant to his claim. If the Veteran returns completed release(s) of information, the AMC should obtain these records and associate them with the claims file. 2. Thereafter, the Veteran must be scheduled for a VA examination with an appropriate examiner to determine the nature and etiology of his psychiatric disorder(s). The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner must state whether it is at least as likely as not that the Veteran's current acquired psychiatric disorder(s) had its/their onset in service or was/were otherwise etiologically related to his active duty service. The examiner should specifically comment on the lay evidence establishing that the Veteran's depressive symptoms began during his last year of military service. If the examiner assigns a diagnosis of a personality disorder, the examiner must state whether the Veteran also has an acquired psychiatric disorder that is superimposed upon the personality disorder. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent, "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 should provide a complete rationale for any opinion provided. 3. After completing the above actions and any other notification or development deemed necessary, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include major depression, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2012).