Citation Nr: 1331192 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-13 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from July 1971 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board observes that the RO has adjudicated the issue as entitlement to service connection for major depressive disorder and anxiety disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Medical evidence of record contains diagnoses of chronic recurrent major depressive disorder; anxiety disorder, not otherwise specified (NOS); alcohol abuse; mood disorder, NOS; and pain disorder. Therefore, the Board has recharacterized the claim on appeal as reflected on the title page. In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disorder. For the reasons that follow, his claim must be remanded. The Veteran's service treatment records (STRs) show that he had normal psychiatric evaluations on induction in both June 1970 and June 1971. On both of those dates, his subjective reports of medical history denied any past or present psychiatric symptoms. An October 1971 Report of Medical History, dated during service, shows that the Veteran reported suffering from depression and nervous trouble, and the examiner noted that the Veteran had depression and nervous trouble. In November 1971, an STR notes "nerves." The Veteran was thereafter hospitalized for psychiatric observation and treatment from November 4, 1971, to December 13, 1971; the diagnosis was passive dependent personality disorder and the Veteran was found unsuitable for service. The report of the 1971 hospitalization shows that the Veteran described "recent psychiatric difficulty" and "emotional turmoil starting when he entered the Navy." This is consistent with the Veteran's lay statements that his psychiatric symptoms began in service. The Board finds the Veteran's contentions regarding the onset and recurrence of his symptoms credible as they are consistent both internally and with the evidence of record. The Veteran was discharged due to a finding that he manifested a "passive-dependent personality disorder." That finding stated that it was not incurred in the line of duty, it existed prior to entry, and it was not aggravated by service. The July 2009 VA examiner echoed this finding. However, a Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(b) (2013). No psychiatric disability or symptoms were noted at entrance into service and the evidence does not clearly and unmistakably show that it was not aggravated by service. Accordingly, the Veteran is presumed to have been sound on entry with respect to his mental health. The record shows that the Veteran receives regular VA care for his psychiatric disability at the Evansville VA community based outpatient clinic (CBOC). However, records of his VA treatment dated since January 2010 have not been physically or electronically associated with the claims file. Records of his VA treatment are constructively before VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the state of the record, the Board finds that the claim must be remanded to associate those records and to afford him a VA examination to assess whether any current psychiatric disability is related to the Veteran's documented psychiatric symptoms in service. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records, physically or electronically, from the Evansville VA CBOC dated after January 2010 that are relevant to the Veteran's mental health. If no relevant records exist, then the claims file should be annotated to reflect such and the Veteran notified. 2. Notify the Veteran that he may submit additional lay statements from himself, as well as from individuals such as friends and/or family members, who have first-hand knowledge of the onset and/or recurrence of his psychiatric symptoms during and/or since service. He should be provided an appropriate amount of time to submit this lay evidence. 3. After completing the above, schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset, and etiology of any psychiatric disability found to be present. The claims file should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should state the likelihood that any psychiatric disability found to be present existed prior to service. If the examiner concludes that a psychiatric disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having a psychiatric disability that did not pre-exist service, the examiner should opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner must specifically acknowledge and comment on the Veteran's competent and credible report of the onset of psychiatric disability symptoms during service and their recurrence thereafter. The rationale for all opinions expressed should be set forth in a legible report. 4. Then readjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 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. 2013). _________________________________________________ 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) (2013).