Citation Nr: 1602258 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 14-11 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to May 1977, and had additional service with the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board has reviewed the Veteran's records maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). On a VA Form 9 dated March 2014, the Veteran stated that he wished to appeal the issue but did not want a Board hearing in connection with the claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a current diagnosis of depression and anxiety due to his service. VA treatment records from November 2011 to November 2012 make note of the Veteran's anxiety and depression, and include his symptoms and methods of treatment. In a July 2012 translated statement, the Veteran states that he feels very anxious and depressed, and that he has felt this way since his service. He explained, "I was on standby to go in the Gulf War, every night I dreamt I was already there, and my wife told me that I woke up like a madman and I still act as if I were in the war. It was a lot of time of tension and waiting that has harmed me." The Veteran specifically alleges that he has had anxiety and depression since active service and then in the Army Reserve. See statement of July 2013. With regard to Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, active duty for training (ACDUTRA). With respect to time periods of inactive duty training (INACDUTRA), service connection may only be granted for injury so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2014). However, the Board notes that the Veteran's military personnel records from his Reserve service have not been obtained and associated with the electronic claims file. Therefore, it remains unclear whether the Veteran's current disability is related to the Veteran's service in light of his assertion, and the specifics of his Reserve service also remain unclear. The crucial issue here is whether there is a nexus between the disability and the Veteran's qualified service. Considering that there is no VA examination of record, a VA medical examination and opinion is warranted to determine the etiology of the Veteran's current depression and anxiety disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). The Board further notes that the absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Instead, service connection may be granted where there is a current diagnosis, credible evidence of an in-service event or injury, and a sound basis upon which to attribute the post-service findings to the injury or event in service. See Hensley, 5 Vet. App. at 159; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate record centers and make appropriate efforts to obtain the Veteran's personnel records from the Veteran's period of Reserve service. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. To that end, if any records cannot be obtained after reasonable efforts have been made, the AOJ should follow the provisions in 38 U.S.C.A. § 5103A(c)(1) and 38 C.F.R. § 3.159(e). 2. Request that the Veteran identify where he has been treated for the claimed disability since his discharge from active service and request that he authorize the release of any non-Federal records. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current anxiety and/or depression. All indicated tests and studies should be performed and all findings must be reported in detail. With respect to any diagnosed psychiatric disorder, including depressive disorder, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder began in or is related to active service from June 1974 to May 1977 or was incurred or aggravated during a period of active duty for training with the Army Reserve. The Veteran's claims file and all other pertinent information (to include the Veteran's personnel and service treatment records from his Reserve service) must be made available to the examiner. The examiner should be given access to the Veteran's Virtual VA/VBMS records, and a copy of this remand. It must be stated in the report that a review of the file was conducted. The examiner should provide detailed rationale for the opinion. The examiner is asked to explain the reasons behind any opinion expressed and conclusion reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 328 (2010). 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he should be furnished a Supplemental Statement of the Case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period 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). _________________________________________________ S.S. TOTH 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) (2015).