Citation Nr: 1335808 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-20 532 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1967. He had service in the Republic of Vietnam from April 1966 to October 1967, where his principal duty was as a cook. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the RO. After reviewing the record, the Board finds that additional development of the evidence is warranted prior to further appellate consideration. Accordingly, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The case is REMANDED for the following actions: 1. Notify the Veteran of VA's duties to notify and assist him in the development of his claim of entitlement to a psychiatric disorder, INCLUDING THOSE DUTIES WITH RESPECT TO AGGRAVATION OF A PRESERVICE DISORDER AND ON THE BASIS OF SECONDARY SERVICE CONNECTION. 2. During an August 2010 VA psychiatric examination, the Veteran reported that he had experienced psychiatric symptoms, such as paranoia, since childhood. However, there are no records on file to substantiate such difficulty. Ask the Veteran to identify any EVIDENCE OF ANY PSYCHIATRIC SYMPTOMS OR TREATMENT PRIOR TO SERVICE. This could include, but is not limited to treatment records, school records; employment records; or records of trouble with the authorities. Request that the Veteran provide the names and addresses of the person or entity holding such records, as well as the approximate dates that the Veteran displayed the psychiatric symptoms. Then, REQUEST THOSE RECORDS DIRECTLY FROM THE PERSON OR ENTITY HOLDING SUCH RECORDS. Efforts to obtain records held by any federal agency must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. If records are held by an entity unaffiliated with the federal government and are unavailable, notify the Veteran of that fact in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(e) (2013). 3. During his August 2010 VA psychiatric examination, the Veteran reported that he had gotten in trouble in service and had been moved around a lot. Other than his Enlisted Qualification Record (DA Form 20), the Veteran's service personnel records have not been associated with the claims file. However, they could well be relevant to the Veteran's claim, as they could present evidence of disciplinary problems in service. Accordingly, the VETERAN'S SERVICE PERSONNEL RECORDS must be requested for association with the claims folder. Such records could include, but are not limited to, counseling statements, records of nonjudicial/judicial punishment, police reports, and enlisted efficiency reports. Efforts to obtain the Veteran's service personnel records, other than his DA Form 20, must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. 4. During his August 2010 VA psychiatric examination, the Veteran reported that during his post-service employment, he had been written up on several occasions due to his angry outbursts. It was noted that he had worked at a glass factory for 38 years, though not continuously. Ask the Veteran for the names and addresses of his employers since service. Then, request copies of the Veteran's EMPLOYMENT RECORDS DIRECTLY FROM EACH POST-SERVICE EMPLOYER. Such records could include, but are not limited to, attendance records; records of tardiness; employment applications; medical records and the reports of any pre-employment examinations; reports of job performance; reports of duty limitations or job changes and the reasons for such limitations or changes; reports of workman's compensation claims or claims for other disability benefits; reports of vocational rehabilitation or job retraining; counseling statements; reports of union involvement; and reports of termination and any associated severance pay. In particular, request the Veteran's records from glass factory where he worked for 38 years. If the former employers do not have such documents, request that they provide a statement on business letterhead stationary addressing the foregoing concerns. Also request that the Veteran provide any employment in his possession which addresses the foregoing concerns. Failures to respond or negative replies to any request must be noted in writing and associated with the claims folder. Efforts to obtain records of the Veteran's employment with any federal agency must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. If records of the Veteran's employment with a private employer are unavailable, notify the Veteran of that fact in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(e) (2013). 5. Records from the Old Schoolhouse Family Practice show that the Veteran has been prescribed Lexapro for depression since June 2004. The RECORDS REFLECTING THE INITIAL TREATMENT FOR DEPRESSION have not been associated with the claims folder. Request that the Veteran provide the name and address of the health care provider who initially treated him for depression and prescribed Lexapro. Also request that he provide the date of that treatment. Then REQUEST THOSE RECORDS DIRECTLY FROM THE PERSON OR ENTITY HOLDING SUCH RECORDS. Efforts to obtain records held by any federal agency must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. If records are held by an entity unaffiliated with the federal government and are unavailable, notify the Veteran of that fact in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(e) (2013). 6. Following the Veteran's August 2010 VA examination, the examiner suggested that the Veteran's Axis I diagnosis was depressive disorder, not otherwise specified. She stated that the Veteran did not meet the criteria for PTSD. However, following an October 2010 consultation with the VA Psychiatric Service, the consultant opined that the Veteran did meet the criteria for PTSD. In view of these conflicting opinions, an additional examination is warranted. The August 2010 VA examiner also stated that the Veteran's experiences in Vietnam appeared to aggravate his preservice symptoms of anger and paranoia. In addition, the VA examiner suggested that the Veteran's depression could be the result of co-morbid medical conditions, such as his service-connected diabetes mellitus, peripheral neuropathy of both upper and lower extremities. To date, VA has not formally adjudicated the issue as to WHETHER THE VETERAN HAS A PSYCHIATRIC DISORDER WHICH EXISTED PRIOR TO SERVICE, AND IF SO, WHETHER IT WAS AGGRAVATED DURING SERVICE; that is, was there an increase in the underlying pathology in service beyond its natural progression ? Further, VA has not formally adjudicated the issue of WHETHER THE VETERAN'S DEPRESSION IS PROXIMATELY DUE TO OR HAS BEEN AGGRAVATED SOLELY BY A SERVICE-CONNECTED DISABILITY OR DISABILITIES. As to aggravation, the salient question is, again, whether there was increase in the underlying pathology in service beyond its natural progression ? When the actions in parts 1, 2, 3, 4, and 5 have been completed, SCHEDULE THE VETERAN FOR A PSYCHITATRIC EXAMINATION to determine the nature and etiology of any psychiatric disorder found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a psychiatric disorder(s) is found, the examiner must identify and explain the elements supporting each diagnosis. For each diagnosis, the examiner must also render an opinion as to whether it is AT LEAST AS LIKELY AS NOT DIRECTLY RELATED TO SERVICE OR EXISTED PRIOR TO SERVICE AND WAS AGGRAVATED IN SERVICE, OR IS PROXIMATELY DUE TO OR HAS BEEN AGGRAVATED BY A DISORDER FOR WHICH SERVICE CONNECTION HAS ALREADY BEEN ESTABLISHED. THE EXAMINER MUST STATE HOW AND WHY HE OR SHE REACHED THE OPINION(S) THEY DID. If the Veteran fails to report for a scheduled VA examination, a copy of the notice informing him of the date, time, and location of the examination must be associated with the claims folder. If that notice was returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 7. When the actions requested in parts 1, 2, 3, 4, 5, and 6 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for a psychiatric disorder on A DIRECT AND SECONDARY BASIS AND ON THE BASIS OF AGGRAVATION OF A CLAIMED PRE-SERVICE PSYCHIATRIC DISORDER. THE RO/AMC MUST MAKE SUCH DETERMINATIONS FOR EACH PSYCHIATRIC DISORDER FOUND TO BE PRESENT. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). _________________________________________________ KELLI A. KORDICH Acting 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).