Citation Nr: 1328272 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-03 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include anxiety disorder with blackouts. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran had active service from September 1976 to January 1978. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge in May 2013. A transcript of the hearing is of record. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim for service connection for a mental disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In light of this decision, the Board finds that the Veteran's most recent claim for service connection for anxiety with blackouts may be considered to encompass any acquired psychiatric disorder. The claim on appeal has therefore been recharacterized to conform to Clemons. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Here, at an August 2010 Decision Review Officer (DRO) hearing at the RO, the Veteran reported private medical treatment by a psychologist where he was prescribed Elavil for anxiety, depression, and suicidal tendencies. At the May 2013 Board hearing, the Veteran stated he saw a private psychologist one time. However, it does not appear that any effort was made to obtain these private treatment records. The RO/AMC should associate any additional private treatment records received with the claims file. The evidence of record is also unclear as to whether all VA treatment records have been associated with the claims file. In his May 2008 Notice of Disagreement, the Veteran claimed he had experienced a blackout while at a VA Medical Center (VAMC). At the May 2013 Board hearing, the Veteran repeated this contention. Records reflecting VA treatment for anxiety or blackouts have not been associated with the claims file. The RO/AMC should obtain and associate any additional VA treatment records with the claims file. Additionally, under the VCAA, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. Id. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran contends that he has anxiety with blackouts that was caused or incurred by his active service. An October 1977 service treatment record noted the Veteran had threatened to commit suicide by overdosing and that he was initially hysterical and inaccessible when brought to the emergency room. The record noted the Veteran denied any previous psychiatric evaluation or treatment. The report indicated the Veteran quickly recovered from his depression and three days later appeared asymptomatic. A final assessment was conducted by a military psychiatrist who indicated the Veteran was not truly depressed and diagnosed him with a personality disorder. The Veteran was discharged from the hospital and returned to active duty. The Veteran's December 1977 separation physical found that his psychiatric condition was clinically normal. The report noted that the Veteran's depression, worry, and nervous problems were related to problems adapting to active service and that the Veteran denied a family history of psychosis. The report also noted several episodes of blacking out as secondary to indigestion and stomach pain. On an associated report of medical history the Veteran claimed he had depression or excessive worry, nervous trouble, and periods of unconsciousness. An April 1996 private treatment record from Dr. P.K. noted that the Veteran had normal mental status as well as a history of syncope (fainting) four times, dating back to 1993. The record noted that two of the four syncopal episodes occurred when the Veteran was experiencing pain, which suggested vasovagal episodes, but that the other syncopal episodes of loss of consciousness or alteration of mental status had not been associated with pain, suggestive of either cardiac syncope or epilepsy. A June 1996 private treatment record from Dr. P.K. also noted the Veteran's history of fainting, that the etiology was uncertain, but could suggest the possibility of a seizure disorder. An April 2000 private treatment record from Dr. P.K. indicated the Veteran had lightheaded spells and nearly fainted. In his August 2007 claim for compensation, the Veteran stated he had an anxiety attack in 1976 during basic training and was given medication. He stated he was again given medication in 1977 and received counseling for anxiety and blackouts. The he also claimed to have experienced blackouts in 1993 and 1997. In his May 2008 Notice of Disagreement, the Veteran indicated he had tried to obtain treatment following his discharge from service but was unsuccessful. In his February 2011 Substantive Appeal, the Veteran stated that feelings of hatred and despair surfaced during service that caused him to become hopeless and depressed. He stated he sometimes feels anxiety and a feeling of semi-consciousness that do not go away. At the May 2013 Board hearing, the Veteran stated that, while his last episode of blackouts was in 2007, he still feels the same uneasiness come on and has learned how to cope with the symptoms. He also acknowledged that, while he does not currently receive treatment for anxiety disorder, he does bring it to his private doctor's attention. The Veteran stated he tried to get help at the VAMC but he was told his income was too high for treatment. In light of the aforementioned evidence and the Veteran's contentions in this case, the Board finds that the Veteran should be afforded a VA examination to determine the relationship, if any, of any current psychiatric disorder and the Veteran's active service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for any acquired psychiatric condition or blackouts he has experienced since service (and not already of record). Copies of any outstanding VA treatment records should also be obtained and associated with the claims folder. The RO/AMC should attempt to obtain copies of any private treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. Specifically the RO/AMC should ask the Veteran to authorize the release of information to the VA for the private treatment records identified by him at the August 2010 DRO hearing and at the May 2013 Board hearing and all reasonable attempts should be made to obtain such records. 2. Thereafter, the Veteran should be afforded a VA examination to obtain an opinion as to the nature and etiology of any acquired psychiatric disorders and any blackout disorders. The examiner should diagnose all Axis I and II psychiatric disorders and all blackout disorders and then provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any Axis I psychiatric disability or blackout disorder was incurred or caused by the Veteran's military service. In providing the requested opinion, the examiner should specifically address the following: a) the October 1977 in service hospitalization for suicidal ideation, including the determination by a military psychiatrist that the Veteran was not truly depressed and the diagnosis of a personality disorder; b) the December 1977 separation physical findings that the Veteran's psychiatric condition was clinically normal, his depression, worry and nervous problems were related to problems adapting to active service, and that the blackouts were secondary to indigestion and stomach pain; and, c) the private treatment records from Dr. P.K. that noted a history of syncope dating back to 1993. The claims folder should be made available to the examiner. The examiner should provide a clear rationale and basis for all opinions expressed. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. 3. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ MATTHEW D. TENNER Acting 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).