Citation Nr: 1326852 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-18 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a neuropsychiatric disability, claimed as depression and/or cognitive impairment. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his sister ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for depression has been recharacterized as entitlement to service connection for a neuropsychiatric disorder, claimed as depression and/or cognitive impairment. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). In his June 2011 VA Form 9, the Veteran requested a hearing before the Board in conjunction with his appeal. However, in May 2012, he withdrew that request and asked that his appeal be forwarded to the Board. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran and his sister have reported, to include their testimony at a May 2012 Decision Review Officer (DRO) hearing, that he has depression as a result of incidents in service, to specifically include having to repeat basic training, being assigned to menial tasks, and being treated harshly by superiors. While his service treatment records, including his service entrance and service separation examinations, show no symptoms or diagnoses of psychiatric or cognitive disabilities, his service personnel records reflect inferior achievement/performance evaluation marks, specifically attributed to the Veteran's inability to follow-through on directives, as well as an incident of being absent without leave towards the end of his enlistment period. Lay statements from the Veteran's sister, among others, indicate that since service the Veteran has manifested significant cognitive and psychiatric (primarily depressive) symptomatology; VA treatment records as early as a September 2001 neuropsychiatric evaluation note findings of depression. The threshold for finding a link between current disability and service is low for the purposes of providing a medical examination. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). McLendon held that an examination is required when (1) there is 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. Taken in the aggregate, the Board finds that the evidence of record discussed above triggers VA's duty to assist by providing a VA examination. Remand is required so that such an examination may be conducted. Finally, at his May 2012 hearing before a Decision Review Officer (DRO), the Veteran reported seeking treatment for depression at the Charleston VA Medical Center. Those records are not physically or electronically associated with the claims folder. As such, on remand, the RO should attempt to obtain these records. Accordingly, the appeal is REMANDED for the following actions: 1. Notify the Veteran that he may submit additional lay statements from himself and from individuals who have first-hand knowledge and/or were contemporaneously informed of any in-service and post-service psychiatric symptoms, to include any change in the Veteran's behavior since his discharge from active duty. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 2. Then, after physically or electronically associating any pertinent, outstanding records with the claims folder, to specifically records from the Charleston VA Medical Center dated in 1979 and 1980, schedule the Veteran for a VA neuropsychiatric examination to determine the nature, onset and etiology of any psychiatric and/or cognitive disability found to be present. The claims folder should be made available to and reviewed by the examiner and all necessary tests should be conducted. The examiner should identify all psychiatric disability diagnosed since the Veteran filed this claim in April 2009. Thereafter, the examiner must opine as to whether it is at least as likely as not that any diagnosed psychiatric and/or cognitive disability is related to the service or had its onset during the Veteran's service. The examination report must reflect consideration and analysis of all evidence of record, medical and lay, i.e., it must acknowledge and discuss the competent testimony of the Veteran's and his sister at his May 2012 DRO hearing and the May 2009 competent joint statement signed by three of the Veteran's sisters. All findings and conclusions should set forth in a legible report and should be supported by a complete rationale. 3. When the above development has been completed, readjudicate the appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). _________________________________________________ STEVEN D. REISS 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).