Citation Nr: 1331420 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-18 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include avoidant personality disorder, major depressive disorder and anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1983 to September 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. 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 Service connection can be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board is also cognizant of the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. A review of the record reveals that a VA treatment record dated in April 2009 reflects that the Veteran was diagnosed with an Axis I major depressive disorder and an anxiety disorder otherwise unspecified, along with an Axis II avoidant personality disorder. An addendum to the April 2009 VA medical report indicated that although the Veteran had a longstanding avoidant personality disorder, it was unclear when the co-morbid major depressive disorder, social phobia, and other anxiety symptoms began. It was stated that a definitive exploration of whether or not his symptoms were aggravated by military service would be deferred to a VA compensation and pension examination. Thereafter, a February 2010 VA examination was conducted to determine what, if any, acquired psychiatric disabilities the Veteran had. The examination report reflects that the Veteran was diagnosed only with an Axis II avoidant personality disorder. The examiner did not diagnose the Veteran with an Axis I major depressive or anxiety disorder and therefore did not opine on the origins of any Axis I disabilities. Since the Veteran was diagnosed with Axis I psychological disorders during the pendency of the claim, service connection may still be warranted even though the Veteran may no longer experience a major depressive or anxiety disorder. Service treatment records reflect that the Veteran received treatment for anxiety and depression during service and the Veteran has asserted that his experiences during service are the cause of his mental health problems. As such, a medical opinion regarding the etiology of the previously diagnosed major depressive and anxiety disorders is required prior to appellate adjudication. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with a VA psychiatric examination. The claims file should be provided to the examiner in connection with the examination. Any medically indicated tests should be accomplished. The examiner is asked to specifically address whether or not the Veteran currently has an acquired psychiatric disability, to include major depressive and anxiety disorders. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's acquired psychiatric disabilities diagnosed during the pendency of the claim, even if they have since resolved, are etiologically related to service. Additionally, the examiner should opine as to whether it is at least as likely as not any acquired psychiatric disabilities were superimposed on the Veteran's avoidant personality disorder during service. A complete rationale for any opinion offered must be provided. 2. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the claim for service connection for an acquired psychiatric disability. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ U.R. POWELL 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).