Citation Nr: 1331490 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-32 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and/or posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active service from March 1978 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In April 2011, the Board remanded the claim for the purpose of obtaining additional information with respect to the Veteran's claim. The claim has since been returned to the Board for review. In October 2012, the Veteran revoked his power attorney in which he had appointed a Veterans Service Organization (VSO). In March 2013, the VSO asked the Board to accept the Veteran's wishes of the revocation. In June 2013, the Veteran confirmed that he wished to represent himself in the appeal. Thus, the Board finds that the Veteran is now self represented. REMAND The Veteran contends that he has an acquired psychiatric disorder that he attributes to his military service. He has claimed that he suffers from anxiety, depression, and/or PTSD. As noted above, in April 2011, the Board remanded the claim to the RO for the purpose of obtaining additional medical evidence. The Board instructed the RO ensure that all notification and development actions were satisfied, to schedule a VA psychiatric examination and to readjudicate the claim. The record reveals that the Veteran underwent VA psychiatric examinations in June 2011 and August 2011. Other than alcohol dependence in remission, the examiner found that the Veteran did not have a psychiatric disorder, including PTSD. The examiner noted that there was no occupational or social impairment resulting from the psychiatric presentation. The examiner confirmed the opinion in a February 2012 addendum after he reviewed the Veteran's claims file. Absence proof of a current disability, a claim of service connection may not be granted. See 38 U.S.C.A. § 1131 (West 2002); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the United States Court of Appeals for Veterans Claims (Court) has held that the current disability element of a service connection claim is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim. McClain v. Nicholson 21 Vet. App. 319, 321 (2007). A claimant may be granted service connection even though the claimed disability resolves prior to VA's adjudication of the claim. Id. Here, the VA examiner determined that there is no current disability, such as depression, anxiety, or PTSD. Nevertheless, the record contains diagnoses of psychiatric disorders during the pendency of the claim. The Board finds it necessary to remand the claim for a medical opinion to determine if any psychiatric disorder identified during the pendency of the claim resolved and, if so, whether the disorder is related to the Veteran's active service. The medical opinion should also address whether the psychiatric disorder diagnoses were erroneous and, if so, provide an explanation of why the Veteran did not have a psychiatric disorder during the claim process. Accordingly, this case is REMANDED for the following actions: 1. Forward the claims file to the VA psychologist who conducted the June 2011 and August 2011 VA examinations. The examiner should re-review the Veteran's claims file, and provide an opinion that clarifies whether the Veteran has had a psychiatric disorder during the pendency of the claim, which was filed in July 2005. If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder identified during the pendency of the claim has a causal origin in active service, to include the alleged striking of the mine and support of operations in the Arabian Sea while serving on the USS Ranger. If not, the examiner should provide an opinion that addresses whether the psychiatric disorder diagnoses were erroneous and, if so, provide an explanation of why the Veteran did not have a psychiatric disorder during the claim process. A rationale should accompany any conclusions reached. (The claims file should be forwarded to another similarly qualified medical professional should the June 2011 and August 2011 VA examiner be unavailable. Also, an examination should be arranged if an examination is needed to answer the questions posed above.) 2. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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 case 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). _________________________________________________ RYAN T. KESSEL Acting 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 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).