Citation Nr: 1328824 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-34 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depression. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had recognizable service for VA compensation purposes from June 1977 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for depression. The matter has subsequently been transferred to the RO in Roanoke, Virginia. In consideration of Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a service connection for a mental health disability claim encompasses all psychiatric disability shown/alleged) the issue of service connection for a psychiatric disability has been characterized to encompass all psychiatric diagnoses shown in the record. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in July 2013. A transcript has been associated with the electronic record. 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 Board finds that additional development is necessary to afford proper adjudication of this claim for service connection for a psychiatric disorder. The service treatment records refer to an incident in service in which the Veteran overdosed on pain relievers in December 1977, with psychiatric evaluation subsequent to this incident diagnosing a character disorder of inadequate personality manifested by ineffectual responses to the emotional, social and intellectual demands of life despite no physical or mental deficits to account for this behavior. Post service treatment records show differential diagnoses including schizoaffective disorder, schizophrenia, bipolar disorder and depression, with more recent treatment records from the VA (located in the electronic folder) primarily showing a diagnosis of schizoaffective disorder in addition to substance abuse disorder. A VA examination dated in May 2012 diagnosed schizoaffective disorder and determined that this disorder predated service, noting that this is a lifelong disorder that is likely genetic in origin. Subsequent to this examination, an opinion from M.K., a VA psychologist was obtained in July 2013 stating that trauma experienced by the Veteran as a medical corpsman, had a profound impact on his personal and occupational function for the rest of his life. The Veteran has alleged in lay statements and hearing testimony he was doing well in the Navy until an incident in December 1977 when he was serving as a medical corpsman when a patient in his care had a heart attack and died after he panicked and was unable to render assistance. While there is no confirmation of this incident in the service department records, his military occupational specialty is shown to have a related civilian occupation as a medical assistant, and he is noted to have worked in the hospital during service. The Veteran in his July 2012 hearing denies having had any history of psychiatric problems prior to service and described his pre-service life as normal, doing well in high school, in contrast with the findings shown in the post service VA and private treatment records of social and family problems during childhood. He has argued that the VA examination was inadequate and that the examiner focused unduly on his pre-service history. He also claimed that he had a bad rapport with the examiner and did not feel comfortable communicating with him, thus skewing the findings. The Board additionally notes that the May 2012 VA examination report, while stating that the diagnosed schizoaffective disorder pre-existed service and neither began in nor was caused by service, failed to address the question of aggravation of this disorder during service. Further, in regards to the psychiatric disorders claim, it appears additional VA records are outstanding, which may pertain to this claim. Although records from VA facilities cited by the Veteran as including treatment in Tuskegee, Alabama between 2006 and January 2007, Houston, Texas in 2006 and Washington DC between 2009 and 2012 are of record (either in the claims file or electronic record), the Board notes that the Veteran reports continued treatment at the VA Medical Center in Washington DC. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from the VA Medical Center in Washington DC for treatment for a psychiatric disorder and/or a sleep disorder from April 2012 to the present and from Houston, Texas for the remainder of 2007. Continue to request the VA records, either until the records are obtained or it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Thereafter, following completion of the above, schedule the Veteran for a VA psychiatric examination by a different medical examiner than the examiner who conducted the May 2012 VA examination to determine the nature and extent of any current psychiatric disabilities, and to obtain a medical opinion as to whether any such disorders are possibly related to service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. The examination report should include a detailed account of all psychiatric pathology found to be present. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should clearly identify all psychiatric disorders found. With respect to each acquired psychiatric disability found to exist, the examiner should indicate whether or not it clearly and unmistakably pre-existed service, and if so, whether or not it clearly and unmistakably was not aggravated therein. If it did not clearly and unmistakably pre-exist service, opine as to whether it at least as likely as not (50 percent probability or greater) had its clinical onset during service or is otherwise related to any incident of service. In rendering the requested opinion, the examiner should consider all pertinent evidence, to include the service treatment records during both periods of service, the May 2012 VA examination report, the July 2013 opinion from the VA psychologist regarding the impact of service on his social and occupational function, and lay statements/testimony from the Veteran, including that pertaining to the claimed incident of the patient he was treating dying from a heart attack. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ THOMAS J. DANNAHER 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).