Citation Nr: 1329991 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-28 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to eligibility for nonservice-connected pension. 2. Entitlement to service connection for a psychiatric disability, to include major depressive disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The appellant served on active military duty from June 8, 1973 to July 27, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision of the Department of Veterans Affairs Regional Office (RO) in Waco, Texas. The Board has re-characterized the claim of service connection as indicated on the title page of this decision. Such characterization takes into account the holding in Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009) (the scope of a mental health disability claim 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). In May 2013, the appellant testified at a Board hearing before the undersigned. A transcript has been reviewed and is in the file. 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 Veteran seeks nonservice-connected pension benefits and service connection for a psychiatric disability. He has intermittently contended that depression started during basic training, which led to a medical discharge. Although the Veteran did not have at least 90 days of active service, he may also meet the service requirement for nonservice-connected pension if it is found that he was discharged from service due to a service-connected disability. See 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3 (2013). His claim for pension is inextricably intertwined with the claim of service connection for a psychiatric disability. Although the RO originally found the Veteran was not receiving Social Security Administration (SSA) benefits in November 2008, at his April 2010 VA examination and at a December 2010 VA primary care appointment, he stated he was receiving SSA disability benefits. It is unclear whether these records relate to the issue on appeal. The duty to assist requires that such records must be requested where they may be relevant to the issues on appeal. See Golz v. Shinseki, 590 F.3d 1317, 1320-23 (Fed. Cir. 2010). Additionally, an opinion clarifying the April 2010 VA examination report is requested. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the evidence shows that the Veteran has a current disability of recurrent major depressive disorder and polysubstance dependence in remission, but the Board is seeking clarification regarding element (2), incurrence (see April 2010 VA examination report). A psychiatric disability was not noted upon entry to service (see 1973 pre- and enlistment examination reports). The Veteran was presumed sound upon entry to service, thus the presumption of soundness applies here. See 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir. 2004). The April 2010 VA examination report did not offer an opinion as to whether any psychiatric disability clearly and unmistakably preexisted service. On remand, the examiner should clarify if it is clear and unmistakable that the psychiatric disability pre-existed service. If so, the examiner should state whether it was clear and unmistakable that the disability underwent an increase in severity service. If so, the examiner should state whether there is clear and unmistakable the increase in disability is due to the natural progress of the disability. See Gilbert v. Shinseki, 26 Vet. App. 48, 51-53 (2012). The clear and unmistakable evidence standard is "onerous" and "very demanding" standard. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); see Cotant v. Principi, 17 Vet. App. 116, 131 (2003). The evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). If not met, the nexus element of the claim is to be determined under the preponderance of the evidence (as likely as not) standard. See Gilbert, 26 Vet. App. at 54-55. Accordingly, the case is REMANDED for the following action: 1. Obtain records pertaining to the Veteran's claim for SSA disability benefits, including any SSA decisions and the medical records relied upon in making that decision. If unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e) (2013). 2. Next, after the above development is completed (and regardless of whether new records are associated with the file) send the file to a VA examiner for an opinion. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in association with the examination. The VA examination report or addendum should indicate that this has been accomplished. The following should be addressed: * The examiner should state whether there is clear and unmistakable evidence (i.e., whether it is undebatable) that any psychiatric disability preexisted service. The examiner should reference: o Pre-service records in the service personnel file of references reporting positive and negative traits and o May and June 2007 private records showing a history of early substance abuse and child sexual abuse. * If a psychiatric disability preexisted service, the examiner should state whether there is clear and unmistakable evidence that the psychiatric disability underwent an increase in severity in service. The examiner should reference: o July 1973 enlistment evaluation board records. * If a psychiatric disability preexisted service and underwent an increase in service, the examiner should state whether there is clear and unmistakable evidence that the increase was due to the natural progress of the disease. * If the evidence is not clear and unmistakable, the examiner should state whether it is at least as likely as not that any and each psychiatric disability had its onset in or is etiologically related to service. The examiner should support the opinion with citation to the relevant facts and medical principles. 3. Readjudicate the claim on 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 appellant has the right to submit additional evidence and argument on the 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).