Citation Nr: 1332106 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-18 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1972 to December 1973, and had a prior period of active duty for training. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, a remand is required to ensure that there is a complete record upon which to decide the Veteran's claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c) and (d). In his April 2010 VA Form 9, the Veteran asserts that his depression and anxiety were caused by service. Specifically, he attributes his disorder to a stressful work environment while he was stationed in Guam, witnessing bodies being loaded onto planes, and the death of a friend. The Veteran states that he saw a military physician for unexplained pain during service, and that this physician suggested that he seek psychiatric treatment. However, the Veteran states that he did not seek such treatment because he wanted to "avoid being labeled as a person with a psychiatric condition." The Veteran submitted treatment records from two physicians in a private practice, J.H.K., D.O. and M.R.W., D.O., dated from October 1994 to May 2007. Dr. J.H.K. diagnosed the Veteran with depression and anxiety and treated those disorders with prescription medication. An October 1994 treatment note by Dr. J.H.K. states that the Veteran had started taking an antidepressant under his care 5 to 6 years prior. In the same note, Dr. J.H.K. remarks that the Veteran's mood was affected by the recent death of his mother. In January 2007, Dr. M.R.W. stated that the Veteran "has had depression off and on for many years[;] it seemed to rear its head when he was in Guam back during his service days." Dr. M.R.W. goes on to state that the worsening of the Veteran's depression was "probably related to seasonal affective disorder." The Service Treatment Records show that, when the Veteran went to sick call in Guam between July and August of 1972 due to complaints of burning during urination, repeated tests failed to indicate any infection. Notably, the physician felt that there was a "strong psychological component" to the Veteran's complaints. The Service Treatment Records do not contain any further explanation of the physician's statement. The Veteran did not endorse depression or anxiety problems on his report of medical history upon separation from service. The Veteran had an October 2008 primary care visit at a VA medical center, during which he attributed his depression and anxiety to his service in Vietnam. An opinion as to the etiology of the Veteran's depression and anxiety was not provided. The Veteran was not afforded a VA compensation and pension examination to assist in determining the etiology of his depression and anxiety. In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims (Court) has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). In this case, there is competent evidence that the Veteran is currently diagnosed with depression and anxiety. Given the military physician's notes regarding a "psychological component" to the Veteran's urological complaints in service, there is an indication that the Veteran may have had some type of psychiatric disorder in service. Additionally, Dr. M.R.W. suggested that the Veteran's depression began while he was in service. In light of the above, the Board finds that a VA examination with medical nexus opinion is required to assist in determining whether any current psychiatric disorder is causally related to active service. See McLendon; 38 C.F.R. § 3.159(c)(4). Furthermore, the Veteran, through his representative, has requested a VA examination. Accordingly, the case is REMANDED for the following action: 1. Review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements, to specifically include furnishing the Veteran notice of the specific information and evidence necessary to substantiate a claim of service connection for an acquired psychiatric disorder. 2. Ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his claimed disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. The RO should obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason must be explained for the record. 3. After the development sought above is completed, arrange for the Veteran to undergo a VA examination to ascertain the current nature and etiology of any acquired psychiatric disorder. The examiner should be requested to: a. Indicate by diagnosis all psychiatric disorders currently shown, and; b. Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric disability, including depression and anxiety, had its onset in service or is otherwise related to service. In providing any opinion, please specifically discuss significance of the August 1972 Service Treatment Record noting a psychological component to the Veteran's urinary complaints, and Dr. M.R.W.'s January 2007 statement that the Veteran had depression since service when he was in Guam. The relevant documents in the claims folder should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claim for benefits. The Veteran should be given an opportunity to respond to the supplemental statement of the case prior to returning the case to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ J. Parker 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).