Citation Nr: 1339679 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-19 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric condition, including stress, depression, and anxiety. 2. Entitlement to service connection for a skin condition. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a right knee disorder. ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) in the Army Reserves beginning in September 23, 2004 and lasting until March 7, 2005. He is a Veteran based upon this period of service, as he was awarded service connection for plantar fasciitis of the left foot incurred during this period of service. See 38 U.S.C.A. § 101(24)(B). The record indicates the Veteran continued with Reserve duties in the form of ACDUTRA and inactive duty training (INACDUTRA) until September 2009. See "Memorandum for Verification of Service" dated February 5, 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied service connection for an acquired psychological condition. The Veteran perfected an appeal of this rating decision. In a June 2011 rating decision, the RO denied entitlement to service connection for a skin condition and denied the Veteran's petition to reopen his claim of entitlement to service connection for a right knee disorder. The Veteran submitted a timely notice of disagreement with the June 2011 rating decision in July 2011. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. 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 service connection is warranted for an acquired psychiatric condition, variously diagnosed as stress, anxiety, depression, and an adjustment disorder. He states that his depression and anxiety began in basic combat training (BCT) and increased through weekend drills while in the Army reserve, specifically citing the increased pressure he felt before, during, and after his weekend drills. He cited the fear of underperforming, as well as the fear of interacting with his fellow soldiers, as two of the sources of his anxiety issues. He was eventually referred to an Army counselor, and there are records of these sessions at Ceridian LifeWorks Services in his file, beginning in March 2007. To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., prior AD) does not obviate the need for him to establish that he is also a "Veteran" for purposes of periods of ACDUTRA where the claim for benefits is premised on those periods of ACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (though not disease) incurred or aggravated during INACDUTRA. Id.; see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); 38 U.S.C.A. § 101(24)(C). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to assist requires VA to provide an examination 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. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4)(1); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, there is competent evidence of the Veteran's anxiety and depression started during his BCT from September 2004 to March 2005. See VA Form 9, dated July 9, 2011. To date, there is no competent medical opinion regarding the specific etiology of his conditions. Because the Veteran's circumstances meet the low threshold of McLendon, he is warranted a VA examination for such evidentiary purposes. In addition, there are treatment records from Ceridian LifeWorks Services dated from March 2007 to June 2007 associated with the claims folder. However, a statement from the Veteran indicates that he received treatment for anxiety and depression through June 2008. Therefore, his complete treatment records should be obtained. Finally, as discussed in the introduction, in a June 2011 rating decision the RO denied entitlement to service connection for a skin condition and denied the Veteran's petition to reopen his claim of entitlement to service connection for a right knee disorder. The Veteran submitted a timely notice of disagreement with the June 2011 rating decision in July 2011. By filing a timely NOD with June 2011 rating decision, the Veteran has initiated appellate review; however, the RO has yet to issue an SOC with respect to these claims, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, the claim for service connection for a skin disorder and the request to reopen a claim for service connection for a right knee disorder must be remanded for the issuance of an SOC. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical care providers that treated him for any psychiatric problems since June 2007. Make arrangements to obtain all records that he adequately identifies. 2. Thereafter, schedule the Veteran for a VA psychiatric examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests should be accomplished. The examiner is requested to provide a diagnosis of any psychiatric disorder found to be present. The examiner should then provide an opinion as to whether it is at least likely as not (50 percent or greater probability) that any current psychiatric disorder had its clinical onset during the Veteran's period of ACDUTRA from September 23, 2004 to March 7, 2005 or is related to any in-service disease, event, or injury during that period of service. In providing this opinion, the examiner should consider the Veteran's statements that his depression and anxiety began in basic combat training. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Next, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Furnish to the Veteran and his representative, if any, an SOC as regards the claim for service connection for a skin disorder and the request to reopen a claim for service connection for a right knee disorder, along with a VA Form 9, and afford him the appropriate opportunity to file a substantive appeal perfecting an appeal on these issues. The Veteran is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected within 60 days of the issuance of the SOC. 5. Finally, readjudicate the claim for service connection for an acquired psychiatric disorder. If the claim remains denied, provide the Veteran and his representative, if any, with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ P.M. DILORENZO 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).