Citation Nr: 1603573 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 10-09 716 ) 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. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to service connection for PTSD. In an October 2015 decision and remand, the Board denied entitlement to service connection for posttraumatic stress disorder (PTSD) and remanded a claim of entitlement to service connection for an acquired psychiatric disorder for additional development, to include for an addendum medical opinion regarding depression. On an April 2010 substantive appeal, the Veteran indicated that he wanted a Board videoconference. In an October 2012 substantive appeal for an increased rating for diabetes mellitus, the Veteran again requested a videoconference Board hearing. A hearing was scheduled for September 2015; however, the Veteran failed to report to the scheduled hearing. In a May 2013 statement, prior to the issue being certified to the Board, the Veteran withdrew his claim for an increased rating for diabetes mellitus. The issues of entitlement to total disability based on individual unemployability has been raised by the record in a March 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND An October 2007 treatment record, form a private psychologist, noted that the Veteran was being evaluated as part of an attempt to obtain Social Security Administration (SSA) disability benefits. The private psychologist diagnosed mood disorder and PTSD. The record does not contain copies of any SSA records. On appeal, the AOJ should attempt to obtain any SSA disability records, including any medical records used by SSA in their determination. In March 2009, the Veteran was noted to "currently meet the criteria for PTSD" and depressive disorder, via a VA psychologist. In another March 2009 VA treatment record the Veteran was noted to have a history of diagnoses of depression and anxiety and "rule out PTSD." He was referred for a PTSD diagnostic evaluation. A review of the VA treatment records does not include a PTSD diagnostic evaluation. An August 2009 record noted that he had still not been provided a PTSD diagnostic evaluation. It is unclear if the evaluation was ever performed; however, as the claim is being remanded for additional reasons, on remand the AOJ should attempt to obtain any missing PTSD diagnostic evaluations from 2009 onward. A September 2009 mental health treatment record noted the Veteran had sleep problems secondary to worrying about health concerns. An October 2009 record noted that the Veteran struggled to find happiness with limited social and work opportunities. The Veteran has filed a claim of entitlement to TDIU based on his service-connected disabilities rendering him unemployable. A March 2012 VA PTSD examination noted the Veteran did not meet the diagnostic criteria under the DSM-IV for a diagnosis of PTSD. He was diagnosed with a depressive disorder. The examiner noted that the Veteran's exposure to traumatic stressors were minimal, and that his symptoms were more related to depression, which may have been "precipitated by various psychosocial stressors such as unemployment, health conditions and financial problems." A March 2015 VA PTSD examination found that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-V. The examiner noted that the Veteran "described some PTSD symptoms but these again appear fairly mild, diffuse and subclinical." Additionally the examiner noted that the Veteran "did report being depressed all the time and experiencing a lot of pain." In an October 2015 decision and remand, the Board denied entitlement to service connection for posttraumatic stress disorder (PTSD) and remanded a claim of entitlement to service connection for an acquired psychiatric disorder for additional development, to include for an addendum medical opinion regarding depression. In November 2015, the March 2015 examiner provided an addendum opinion. He opined that the Veteran's unspecified depressive disorder was not incurred in or due to his military service. The examiner noted that the first complaint of clinically significant depressive symptoms does not emerge in the record until the 2000s. The examiner noted the 2012 examiner's statement that the Veteran's depression was related to financial and psychosocial stressors. The examiner also cited a 2014 VA mental health treatment record that the Veteran was "still depressed about his son who had died at age 25," in 2000. Additionally, he was noted to have "legal problems and imprisonment in the 1980s which likely contributed to his dissatisfaction and depressive presentation. The record indicates that the Veteran was imprisoned for possession of marijuana. Although the November 2015 examiner noted that psychosocial stressors are not associated with military service, the Board notes that the Veteran's health concerns and employability may be related to his military service. The Veteran is currently service-connected for renal insufficiency, ischemic heart disease, diabetes mellitus, peripheral neuropathy of the lower extremities, and vision difficulties associated with his diabetes. He is currently has a combined schedular rating of 90 percent, and the Board is referring his claim for TDIU. As the 2012 examiner noted that the Veteran's employment and health difficulties are associated with his depression, the Board finds that an additional VA examination which addresses whether service connection for depression, as secondary to his service-connected disabilities is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain ongoing VA treatment records. Obtain a "PTSD diagnostic evaluation" which was ordered in March 2009, if available (if it was provided). 2. Obtain any SSA disability determination records, to include any medical records used in the determination. 3. Schedule the Veteran for a VA mental health examination. The examiner should be provided with access to the Veteran's virtual record, and review the record in conjunction with the VA examination. The examiner should answer the following: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran has an acquired psychiatric disorder as a result of his military service? Note: "current disability" refers to any period from January 2008 (date of the Veteran's claim) to the present. b) Is it at least as likely as not (50/50 probability or greater) that the Veteran has an acquired psychiatric disorder that is due to his service-connected disabilities? Please address the 2012 examiner's notation that the Veteran's depression was associated with health concerns and employment. Each opinion expressed must be accompanied by an explanation/rationale. 4. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board. 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) (2015).