Citation Nr: 1342074 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-35 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder (GAD) and major depression. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1970. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND For the reasons expressed below, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder, to include GAD and major depression, must be remanded for further development. The Veteran has asserted that he incurred a psychiatric disorder as a result of his military service. See the Veteran's notice of disagreement (NOD) and VA Form 9 dated December 2012. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. The Board initially observes that in addition to GAD, the medical evidence of record also indicates a diagnosis of major depression. It is clear that the Veteran is asserting entitlement to service connection for a psychiatric disability or disabilities, however diagnosed. The United States Court of Appeals for Veterans Claims (Court) has decided that a veteran is not held to the disabilities (s)he has listed as a lay person without medical expertise; rather, service connection should be considered for any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, (s)he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The issue on appeal has been restated accordingly. In this matter, the Veteran was afforded a VA medical opinion in May 2012, at which time the examiner determined that his currently diagnosed generalized anxiety disorder clearly and unmistakably pre-existed his military service. The examiner then provided a detailed opinion in which she explained that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." However, as discussed above, a review of the Veteran's VA mental health treatment records demonstrates that, in addition to GAD, he has been repeatedly diagnosed with major depression and depressive disorder, NOS. See, e.g., the VA treatment records dated April 2006, April 2008, October 2010, September 2011, and March 2013. Critically, the May 2012 VA examiner did not provide a medical nexus opinion concerning the currently diagnosed major depression/depressive disorder, NOS. Accordingly, there remains a question of whether the Veteran's acquired psychiatric disorder to include major depression/depressive disorder, NOS, was incurred during his active service. In rendering an opinion as to medical nexus, the examiner should also address the Veteran's in-service stressors, his report of continued psychological symptoms, and provide a medical nexus opinion as to the currently diagnosed psychiatric disorders. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Further review of the record also demonstrates that the Veteran was granted disability benefits by the Social Security Administration. See the Social Security Administration (SSA) inquiry dated September 2010. To this end, the Board notes that no such records, to include a negative response from a SSA inquiry, have been associated with the claims file. Accordingly, upon remand, the Board finds that the RO should attempt to obtain the Veteran's SSA records, as these records are potentially pertinent to his pending claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from Social Security Administration and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Additionally, review of the record (including the Veteran's physical VA claims file as well as her Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, the RO shall procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dating from July 2012. All such available documents must be associated with the claims file. 2. The RO shall also procure from the Social Security Administration copies of the decision addressing the Veteran's application for disability benefits as well as the medical records used in support of that decision. Any records so obtained should be associated with the Veteran's VA claims file. All efforts by the RO to obtain the Veteran's Social Security Administration records, along with any notice that the records are unavailable, shall be documented in the claims file. 3. Then, VBA should refer the VA claims file to the physician who provided the May 2012 VA medical opinion; if she is unavailable the claims file should be referred to a physician with appropriate expertise. The Veteran does not need to be examined. The examiner is requested to review the claims file in its entirety including the recently obtained SSA and VA treatment records. The examiner should then indicate whether her May 2012 opinion concerning medical nexus as to the Veteran's generalized anxiety disorder has changed upon review of the newly obtained records. Specifically, the VA examiner should provide an opinion as to whether the evidence of record clearly shows that an acquired psychiatric disorder, to include generalized anxiety disorder, pre-existed the Veteran's period of active duty military service. If the answer to this question is affirmative, the examiner should then provide an opinion as to whether the pre-existing acquired psychiatric disorder, to include generalized anxiety disorder, clearly did not undergo a worsening beyond its natural progression during his service. If the examiner now finds that the Veteran's an acquired psychiatric disorder, to include generalized anxiety disorder, did not pre-exist his military service, he/she should provide an opinion as to whether the currently diagnosed generalized anxiety disorder had its onset during military service or is causally related to such service. The examiner should also provide an opinion as to whether the currently diagnosed acquired psychiatric disorder, to include major depression/depressive disorder, NOS, had its onset during military service or is causally related to the Veteran's service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication 5. Thereafter, the RO shall readjudicate the claim on appeal. If the benefit sought remains denied, the Veteran and his representative shall be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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 or by the Court 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).