Citation Nr: 1323897 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-08 208 ) DATE ) ) THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder claimed as depression and posttraumatic stress disorder. 2. Entitlement to service connection for drug addiction to include secondary to an acquired psychiatric disorder claimed as depression and posttraumatic stress disorder. REPRESENTATION New York State Division of Veterans Affairs ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1972, to include service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In July 2011, the Board denied the claim, and the Veteran appealed. In November 2012, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the case for readjudication consistent with that decision. As noted in the Board's July 2011 decision the issue of entitlement to service connection for a heart disability, now asserted to include heart failure, has been raised by the record, but has not been adjudicated by the RO. Moreover, the Veteran has raised the issues of entitlement to service connection for diabetes mellitus, hypertension and sleep apnea. These issues, however, have also not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and they are referred to the AOJ for appropriate and immediate action. 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 The Court's November 2012 decision found that VA failed to fulfill its duty to assist when it failed to afford the appellant a compensation examination. Hence, the case will be remanded for that development. Further, the Court held that VA failed to broadly construe the appellant's claim as a claim of entitlement to service connection for an acquired psychiatric disorder claimed as depression and posttraumatic stress disorder. Hence, the Board has restyled the issue. Finally, the Court found that the question of entitlement to service connection for drug addiction to include secondary to an acquired psychiatric disorder claimed as depression and posttraumatic stress disorder was before VA. Hence, the Board will order development and adjudication on that matter. Therefore, this case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he identify any and all private and/or VA or government records pertaining to any treatment he has received for any acquired psychiatric disorder or substance abuse. Thereafter, the RO/AMC should secure all identified records which are not currently part of the claims file. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the appellant should be afforded a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability, to include PTSD and depression. The claims folder, a copy of this remand, and access to the appellant's Virtual VA file must be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner must delineate all psychiatric disabilities identified on examination. The examiner must opine whether it is at least as likely as not that any diagnosed psychiatric disability is at least as likely as not causally related to the appellant's active service or any incident therein. In providing the requested opinions, the examiner is instructed that only a specifically corroborated in-service stressful event may be considered for the purpose of determining whether exposure to such an in-service event has resulted in PTSD. Thus, if posttraumatic stress disorder is diagnosed, the examiner must identify the evidence which independently corroborates any stressor relied upon in diagnosing posttraumatic stress disorder. The examiner must also clearly diagnose any other current psychiatric disabilities other than PTSD which are present. With respect to each such diagnosed disability, the examiner must opine, with supporting rationale, as to whether it is at least as likely as not that the disability had its onset in or is otherwise medically related to service. Finally, if a psychiatric disorder is found to have a 50/50 chance of being related to service, the examiner must then opine whether it is at least as likely as not that drug addiction, or residuals thereof, are caused by that psychiatric disorder. If not, is it at least as likely as not that drug addiction, or residuals thereof, are aggravated by that psychiatric disorder. A complete and well reasoned rationale must be given for any and all opinions offered. 3. After the development requested has been completed, the AMC/RO must review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 4. Thereafter, the AMC/RO must readjudicate the claims, considering all the evidence of record. If any benefit sought remains denied, the RO/AMC must provide the appellant and his representative with a supplemental statement of the case, and afford them an appropriate period of time for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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). 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals