Citation Nr: 1333592 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-11 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for major depressive disorder. REPRESENTATION Veteran represented by: Jeany Mark, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active military service with the United States Army from January 1975 to January 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Houston, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for PTSD. The September 2004 decision was a reconsideration of an earlier, February 2003 decision denying service connection for PTSD. In July 2005, the Veteran testified at a hearing before a Decision Review Officer at the RO. A transcript of that hearing is associated with the claims file. By decision dated in December 2009, the Board denied entitlement to service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2011, based on a Joint Motion for Remand (JMR), the Court vacated the Board's denial and remanded the case to the Board for further action. The Board thereafter denied the Veteran's service connection claim for PTSD in a decision dated June 2011. The Veteran appealed the Board's June 2011 decision to the Court. In a Memorandum Decision dated February 2013, the Court vacated the Board's June 2011 decision and remanded the case. The case has been returned to the Board for compliance with the directives contained in the February 2013 Memorandum Decision. A review of the record reflects a diagnosis of major depressive disorder as well as PTSD. Claims of service connection for psychiatric disorders must be interpreted liberally, in light of a lay Veteran's incompetence in rendering a specific diagnosis. A claim for one acquired psychiatric disability must be considered a claim for all currently diagnosed conditions. See Clemons v. Shinseki, 22 Vet. App.128 (2009). The Veteran's claims on appeal have therefore been recharacterized as entitlement to service connection for PTSD and for major depressive disorder. Furthermore, in the June 2011 Board decision, the Board remanded the Veteran's major depressive disorder claim for further evidentiary development. Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Board remanded the Veteran's claim of entitlement to service connection for major depressive disorder for the agency of original jurisdiction (AOJ) to obtain outstanding VA treatment records and to also provide the Veteran with a VA examination in order to determine the etiology of her major depressive disorder. The Veteran's major depressive disorder claim was to then be readjudicated by the AOJ. If the claim remained denied, a supplemental statement of the case (SSOC) was to be issued to the Veteran and her attorney. In conjunction with the prior remand, outstanding VA mental health treatment records dated to February 2012 have been obtained and associated with the Veteran's claims folder. Moreover, the Veteran was afforded a VA psychological examination in July 2011. After examination of the Veteran and review of her claims folder, the VA examiner diagnosed the Veteran with major depressive disorder and concluded that it is at least as likely as not that her major depressive disorder is related to her military service. The examiner's rationale for his conclusion was based on the Veteran's consistent complaints of depressive symptoms throughout her treatment in the Central Texas Veterans Health Care System since 2002. He also found the Veteran credible with regard to the onset of her depression during military service. Furthermore, he noted that the Veteran's history of substance abuse which began while on active duty appeared to have been at least in part a self-medication strategy to cope with prolonged psychological distress. He also noted the statements submitted by the Veteran's mother regarding the Veteran's change in attitude and emotional status both during and immediately after her military service which he considered to be depressive symptoms. Crucially, after obtaining the outstanding VA treatment records and the VA psychological examination, the AOJ did not readjudicate the Veteran's major depressive disorder claim. In light of the foregoing, the Board finds that the AOJ must readjudicate the Veteran's major depressive disorder claim as instructed in the prior remand. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). With regard to the Veteran's PTSD claim, the Board notes that under pertinent VA regulations, evidence received by the Board from the Veteran or their representative after the last statement of the case (SOC) or SSOC should be referred to the AOJ for consideration unless a waiver of AOJ consideration has been submitted by the Veteran or his representative. See 38 C.F.R. § 20.1304(c) (2012). As indicated above, outstanding VA mental health records as well as a VA psychological examination have been associated with the Veteran's claims folder since the most recent SSOC for her PTSD claim which is dated December 2008. Pertinently, there is no waiver of this evidence associated with the Veteran's claims folder. Furthermore, there is no evidence to suggest that the AOJ has reviewed this additional evidence and readjudicated the Veteran's claim. Accordingly, on Remand, the AOJ should readjudicate the issue of entitlement to service connection for PTSD. Accordingly, the case is REMANDED for the following action: Readjudicate the issues of entitlement to service connection for PTSD and for major depressive disorder. If either benefit sought on appeal remains denied, the Veteran and her attorney should be furnished a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ MICHAEL A. PAPPAS 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) (2012).