Citation Nr: 1513109 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 06-38 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to head injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran had active duty service from October 1952 through May 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran has perfected timely appeal of that decision. In May 2011, the Board identified the matter as being comprised of two separate issues characterized as: service connection for a cognitive disorder, NOS (claimed as memory loss) due to head injury, and, as service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as psychological condition) due to head injury. The Board granted service connection for a cognitive disorder, NOS, but remanded the issue of entitlement to service connection for a psychiatric disability for further development. In January 2013, the Board denied the Veteran's claim for service connection for a psychiatric disability. As basis for the denial, the Board concluded that the evidence of record did not show that the Veteran had a separate psychiatric disorder in addition to his service-connected cognitive disorder, NOS. The Veteran subsequently appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In an October 2013 Joint Motion for Remand, counsel acting on behalf of the Veteran and the VA Secretary (the parties) argued that, despite evidence showing psychiatric diagnoses of depression in June 2005, anxiety disorder in September 2005, and dysthymia in March 2007, the Board failed to consider adequately whether the Veteran had a verifiable psychiatric condition at the time that his claim for benefits was filed in August 2005. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability element for service connection is met when a claimant has a disability at the time that a claim for VA disability compensation is filed, or, during the pendency of that claim, even where the disability in question resolves prior to the Secretary's adjudication). Also, the parties argued that the Board's determination that "diagnoses of depression, anxiety, and dysthymic disorder are isolated and not sustained by the other treatment records" and hence, "they do not provide persuasive evidence of a chronic psychiatric disability" was inadequate reasoning particularly in view of the Veteran's documented complaints of depression and anxiety from 2005 through 2010. Toward that end, the parties noted that the Board failed to provide adequate explanation as to why the psychiatric diagnoses in June 2005, September 2005, and May 2007 are "isolated." The Joint Motion for Remand was granted by the Court in a November 2013 order. In April 2014, the Board remanded the matter again for further development to include: arranging the Veteran to undergo a VA psychiatric examination and readjudication of the matter by the agency of original jurisdiction. The Board is satisfied that the development has been performed; nevertheless, for the reasons set forth below, finds that still additional development is warranted. The claims file in this case consists entirely of records being maintained electronically on VA's "Virtual VA" and "VBMS" filing systems. This electronic file is simply an electronic facsimile of the Veteran's previous paper record. All documents stored in this electronic claims file are reviewed and considered as part of the evidentiary record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a February 2014 letter, the Veteran's private physician, Dr. E.J.S. expressed for the first time in the record that he had been treating the Veteran as his primary care physician for the last 15 years. He expressed further that he had previously diagnosed the Veteran with anxiety and depression, however, did not elaborate as to the bases for his diagnosis. Indeed, VA treatment records that are dated May 2011, and which were received after Dr. E.J.S.'s opinion, do indicate that the Veteran had been treating with Dr. E.J.S. for approximately 18 or 20 years, according to the Veteran. Accordingly, the Board finds that efforts must be made to obtain the Veteran's treatment records from Dr. E.J.S. 38 C.F.R. § 3.159(c)(1). Prior to arranging the above examination, in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his claimed psychiatric disorder since June 2014. VA must then also make efforts to obtain any additional treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of entitlement to service connection for service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to head injury. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to obtain his treatment records from Dr. E.J.S. at the Mankato Clinic. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any other private and/or VA treatment providers who have provided treatment for his service-connected disabilities since June 2014. 2. Obtain the Veteran's treatment records from Dr. E.J.S. at the Mankato Clinic and the records for any other treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Perform any other development deemed necessary in light of the newly obtained evidence. 4. After completion of the above development, the Veteran's claim for service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to head injury, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental statement of the case and be given an opportunity to respond. The appellant 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 2014). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).