Citation Nr: 1334011 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-38 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disability to include schizophrenia, anxiety, and depression (claimed a nerves). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from March 1970 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of August 1972 rating decision of the Louisville, Kentucky, regional office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND By way of history, the Veteran first claimed entitlement to service connection for a psychiatric disability to include nervousness in May 1972. The RO issued a decision in August 1972 that denied service connection for schizophrenia. In the same month, the Veteran submitted a letter to VA stating in part "[w]ell right now I feel [k]ind of cheated on my disability." In this regard, when VA initially denied the Veteran's claim, the pertinent regulation provided the following with respect to the contents of a valid notice of disagreement (NOD): A written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination of agency of original jurisdiction will constitute a notice of disagreement. The notice should be in terms which can be reasonably construed as evidencing a desire for review of that determination. It need not be couched in specific language. Specific allegations of error of fact or law are not required. 38 C.F.R. § 19.113 (1966). In other words, the language of the regulation in effect in August 1972, when the Veteran responded to the RO's rating decision, indicated that the Veteran only needed to express dissatisfaction or disagreement with the rating decision at issue. 38 C.F.R. § 19.113; see Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007). The Veteran did not need to explicitly state a desire for appellate review to initiate an appeal. Id. Rather, as indicated, the Veteran only needed to express his dissatisfaction with the RO's decision to deny service connection for schizophrenia, which he did by stating that he felt "cheated" by the decision. The August 1972 statement constituted a timely NOD. The matter therefore remained pending despite the proceeding RO actions until August 2010 when the Veteran received a Statement of the Case, which he timely appealed to the Board in a September 2010 substantive appeal. Turning to the merits of claim, a VA examiner determined in December 2010 that it was not possible to provide a psychiatric diagnosis due to the Veteran's gross exaggeration of his symptoms. She further stated that the Veteran did not have schizophrenia, and that it appeared that "his disorder was erroneously diagnosed during service." The examiner then references that the Veteran has current symptoms of anxiety that did not appear to be "consistent with what [the Veteran] was treated for during service." She added that there is no continuum of treatment that suggests that anxiety symptoms are in any way related to service. However, in providing her seemingly negative opinion, the VA examiner did not provide an opinion on whether the Veteran had other possible psychiatric diagnosis at the time of his separation at service. There was discussion of his February 1971 hospitalization for hallucinations and nightmare, which was diagnosed as schizophrenia. However, little reference was made to the earlier documented complaints of anxiety, hyperventilation, and bed wetting. There was also no discussion of a July 1972 medical statement that diagnosed psychoneuroses, or a later medical assessment in May 1976, when the Veteran was diagnosed with anxiety neurosis. Additionally, there is third party lay statement and previous statement from the Veteran that were not addressed by the VA examiner. Specifically, in August 1972 a third party lay statement describes the Veteran's condition as "[w]hen he is real nervous it is hard to get a thought across even after you get his attention," and in a July 1978 letter, the Veteran states "I continue to be extremely nervous since my separation from service." In light of these inconsistencies and oversights, the Board finds the December 2010 examination in inadequate. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA provides an examination in a service connection claim, the examination must be adequate). A new examination should be conducted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must provide appropriate VCAA notice as to the information and evidence necessary to substantiate the claim for service connection for a psychiatric disability. 2. Contact the Veteran and ask him to identify any VA or non-VA health care provider that has treated him for a psychiatric disorder since service discharge. After securing the necessary medical release, all identified records should be obtained and included in the claims file. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran. 3. After foregoing has been completed, schedule the Veteran for an examination, by a different examiner then the examiner who conducted the December 2010 VA examination. The claims folder must be made available to the examiner for review, the examiner must indicate that the claims folder and any electronic records were reviewed. This review must be noted in the resulting opinion. The examiner should diagnose any current psychiatric disorder or psychiatric disorder that has existed since the appeal period was initiated in 1972. For each psychiatric disorder that is diagnosed, the examiner should stated whether it as likely as not (a 50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to the Veteran's active service. The examiner must address the findings contained in the service treatment, to include the records documenting complaints of anxiety, hyperventilation, and bed wetting as well as his the report of his hospitalization in February 1971. The clinical significance, if any of the 1972 and 1976 records diagnosing psychoneuroses and anxiety neurosis, respectively, should also be discussed. The lay statements reflecting continuity of symptomatology should be addressed as well. If, and only if, the examiner determines that there is clear and unmistakable (undebatable) evidence that the Veteran's diagnosed psychiatric disability pre-existed his active service, the examiner should then opine whether there is there clear and unmistakable evidence that the Veteran's psychiatric disability was not aggravated beyond its normal progression during active service. Rationale for all requested opinions shall be provided. 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 that particular question(s). 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be adjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MICHEAL A. HERMAN 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).