Citation Nr: 1331850 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-14 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a psychiatric condition to include depression, major depressive disorder, and anxiety disorder with obsessive compulsive disorder traits, as secondary to service-connected cervical sprain/strain, lumbosacral sprain/strain, and bilateral wrist tendonitis disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1995 to July 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his December 2008 claim for benefits, the Veteran contends that he is entitled to service connection for depression. The Board has recharacterized his claim more generally as one of entitlement to service connection for a psychiatric disorder to include depression, major depressive disorder (MDD), and anxiety disorder with obsessive compulsive disorder (OCD) traits. See Clemmons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of 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 Veteran contends that he is entitled to service connection for a psychiatric disorder as secondary to his service-connected disabilities. Specifically, he states that the physical restrictions placed upon him and his inability to complete tasks due to his service-connected cervical sprain/strain, lumbosacral sprain/strain, and bilateral wrist tendonitis have caused him to suffer from depression. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2013); Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds that additional development efforts are necessary prior to adjudicating the issue on appeal. In April 2009, the Veteran was provided a VA examination in which the examiner opined that though the Veteran was diagnosed with MDD and anxiety disorder with OCD traits in December 2008 and March 2009, his symptoms of depression and OCD do not rise to the level of severity warranting a diagnosis of such disorders. The examiner further stated that the Veteran's difficulties in daily functioning are solely a result of his lifelong attention deficit hyperactivity disorder (ADHD). In May 2009, the RO denied the claim, relying on the April 2009 examiner's opinion. The Veteran submitted a notice of disagreement in October 2009 stating that he has "been experiencing increased signs and symptoms of [his] depression to include more and more depressed or blue days due to the chronic pain and stiffness" from his service-connected disabilities. In his March 2010 substantive appeal to the Board, he additionally provided that he has been experiencing chronic problems with depression and has been diagnosed and treated for depression by the VA. Subsequently, additional VA treatment records dating from October 2009 to April 2012 were associated with the claims file. Though these records contain additional diagnoses of the Veteran as suffering from MDD and anxiety disorder with OCD traits, the records fail to provide a nexus opinion as to whether the Veteran's diagnosed psychiatric disorders are causally related to active service. Accordingly, the RO scheduled the Veteran for a new VA examination in April 2012 to determine the nature and etiology of any psychiatric disabilities; however, the Veteran failed to report to the examination. Notwithstanding the foregoing, given the Veteran's competent and credible lay statements with respect to a worsening of his symptoms, which may be a sufficient basis for a non-ADHD diagnosis, it is necessary to obtain a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Remand is also warranted as the record indicates that additional relevant evidence may be outstanding. The claims file includes a May 2012 request for information from the Social Security Administration (SSA) to the VA inquiring as to the Veteran's receipt of VA benefits for purposes of Supplemental Security Income (SSI). As this request tends to show that the Veteran may have applied for SSA benefits, to include due to disability, and no SSA records are associated with the claims file, a remand is necessary in order to obtain any available SSA records relating to disability benefits. Finally, efforts must be made to obtain additional relevant service records. The Veteran's DD 214 indicates that he was discharged from active duty due to a personality disorder. In addition, the Veteran stated at his April 2009 VA examination that he received "psychiatric care apparently for ADHD when he was on active duty in the Army." The claims file is absent of any behavioral health or personnel records documenting such treatment or indicating the nature of the Veteran's personality disorder warranting discharge. Thus, as such records may be relevant to the present claim, a remand is necessary to obtain the Veteran's behavioral health and personnel records from his active service. Accordingly, the case is REMANDED for the following action: 1. Submit an appropriate request to the National Personnel Records Center (NPRC) to obtain the Veteran's personnel file and any in-service behavioral and mental health treatment records from his active service. Associate any responsive records with the Veteran's claims file. If the search for such records has negative results, documentation to that effect must be included in the claims file. 2. Obtain and associate with the claims file all outstanding VA treatment records from April 2012 to the present, to specifically include those from the Mt. Vernon, Missouri VAMC and Fayetteville, Arkansas VAMC. 3. Obtain and associate with the claims file any available Social Security Administration records for the Veteran concerning the grant or denial of disability benefits. If the search for such records has negative results, documentation to that effect must be included in the claims file. 4. After completing the above development, schedule the Veteran for an examination to determine the nature and etiology of any psychiatric disorder to include depression, major depressive disorder, and anxiety disorder with obsessive compulsive disorder traits. The claims file, including a copy of this Remand, should be provided to the examiner for his or her review in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner is additionally asked to accomplish the following: (a) Interview the Veteran as to the relevant history of his claimed psychiatric disorders and include a detailed description of that history in his or her report; (b) Identify all psychiatric disorders that have existed at any time since the Veteran filed his claim of entitlement to service connection in December 2008; and (c) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that any identified psychiatric disorder that the Veteran has had since he filed his current claim is caused by his service-connected disabilities. (d) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that any identified psychiatric disorder that the Veteran has had since he filed his current claim is aggravated (permanently worsened beyond the natural progression of the disease) by his service-connected disabilities. The examiner should provide a complete rationale for any and all conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examination sent to the Veteran by the pertinent VA medical facility. The Veteran is advised that it remains his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. 3. After ensuring that the requested actions are completed, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant 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). _________________________________________________ BETHANY L. BUCK 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).