Citation Nr: 1324499 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-17 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include a disorder manifested by depression. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2008 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claims. By a decision dated in June 2012, the Board denied the Veteran's claim for service connection for an acquired psychiatric disorder. The Veteran appealed the Board's June 2012 decision to the Court of Appeals for Veterans Claims (the Court). The parties filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board's decision finding that the Veteran is not entitled to service connection for an acquired psychiatric disorder. The JMR does not take issue with the Board's decision regarding the other issues. In a September 2012 Order, the Court endorsed the JMR and vacated that portion of the June 2012 Board decision service connection for an acquired psychiatric disorder. The Veteran's claim now returns to the Board for compliance with the instructions in the September 2012 Court-adopted JMR. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The parties to the JMR have determined that the Board failed to adequately determine whether a VA examination was necessary for the Veteran's depression claim. The Veteran's service personnel records indicate the Veteran separated from service due to a severe character and personality disorder that brings upon violent episodes particularly when aggravated by alcohol. The Veteran has been treated by the VA since 2008 and currently has diagnoses of alcohol dependence with a history of impulse control disorder and adjustment disorder with depression and anxiety. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record 'indicate' that the claimed disability or symptoms 'may be' associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not had a VA psychiatric examination for the purpose of addressing his service connection claim for an acquired psychiatric disorder. In light of the available information, a remand for the scheduling of a VA medical examination to determine the nature and etiology of the Veteran's adjustment disorder with depression and anxiety, and any other identified acquired psychiatric disorder other than PTSD, is warranted. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall afford the Veteran an opportunity to submit or identify any additional evidence relevant to his service connection claim for an acquired psychiatric disorder. Appropriate steps should be taken to obtain any identified records. 2. The RO/AMC shall schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. The claims folder and pertinent treatment records on the virtual VA system must be made available to the examiner, and the examiner must indicate review of these items in the examination report. In addition, the examiner must consider and address in the examination report the Veteran's lay statements relating to his psychiatric history (particularly as relates to service and any pertinent incidents therein), symptomatology, and onset, as appropriate. All studies deemed appropriate should be performed and all findings should be set forth in detail. a) The examiner should identify and diagnose (1) any currently manifested acquired psychiatric disorder(s) and/or (2) any such disability that has been manifested at anytime since March 2008. b) For each diagnosed acquired psychiatric disorder, the examiner should opine whether it is at least as likely as not (at least a 50 percent probability) that the disorder first manifested during service or is etiologically related to service. In providing this opinion, the examiner is requested to evaluate the Veteran's lay history as appropriate and pertinent. In answering the questions posed above, the examiner is advised that the Veteran is generally considered competent to provide lay reports relating to matters within his personal knowledge, and that his reports must be considered in formulating the requested opinion. If the Veteran's lay reports are discounted, the examiner should provide a rationale for doing so. A complete/supporting rationale should be provided for all opinions expressed. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner determines that it is not feasible to respond to any of the requested inquiries the examiner should explain why it is not feasible to respond. It would be helpful if the examiner, in expressing his or her opinion, would use the language 'likely,' 'unlikely' or 'at least as likely as not.' 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 causation as it is to find against causation. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 4. The RO/AMC should then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DAVID L. WIGHT 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).