Citation Nr: 1628163 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 11-11 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the November 2010, February 2011, and April 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2013, the Veteran testified at a Board hearing at the RO in Lincoln. A transcript of that proceeding is associated with the Veteran's electronic (Virtual VA) claims file. The Board has expanded the psychiatric issue on appeal to include any and all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (although a claim identifies a single psychiatric disorder without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or VA obtains in support of the claim). This matter was previously before the Board in November 2014 at which time it was remanded for additional development. It is now returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Pursuant to the November 2014 Board remand, the Veteran was scheduled for a VA psychiatric examination in September 2015. The VA examiner was instructed to determine whether any mood disorder was etiologically related to the Veteran's period of active service, and to discuss the impact of the Veteran's presumed exposure to herbicides in Vietnam on his mood disorder. If the Veteran's mood disorder was not related to his military service, then the examiner was asked to address whether any of the Veteran's service-connected disabilities caused and/or aggravated any mood disorder. At the VA examination, the VA examiner reviewed the Veteran's claims file, and determined that the Veteran did not have, and had not ever been diagnosed as having, a mental disorder, to include a mood disorder. Upon reaching this determination, the VA examiner took into consideration the Veteran's claims file, to include an April 2013 VA mental health treatment report issued by a VA psychiatrist, J.O., M.D. In his report, Dr. O. diagnosed the Veteran with having a mood disorder, with mild anxiety and depression, secondary to arteriosclerosis, coronary artery disease, and Agent Orange exposure. Although the September 2015 VA examiner reviewed and acknowledged the April 2013 VA treatment report, he noted that the Veteran had received no follow-up treatment for this disorder since this time. Unfortunately, the examiner failed to address the nature and etiology of the previously diagnosed mood disorder. In McClain v. Nicholson, the Court held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). See 21 Vet. App. 319, 321 (2007). Indeed, the Veteran's initial claim seeking service connection for a psychiatric disorder was filed in November 2010. Even if the Veteran's psychiatric disorder may have since resolved since filing his claim, the evidence demonstrates that he was diagnosed with having a psychiatric disorder during the pendency of the claim. As such, even if the Veteran was not shown to have a mental disorder at the time of the September 2015 VA examination, this does not relieve the examiner of his or her obligation to address the Veteran's medical history and determine the nature and etiology of his previously diagnosed psychiatric disorder since service and during the pendency of the claim. (The Board recognizes that it is counterintuitive to address a disability that is not currently diagnosed, but this is what the Court required in McClain, even if the disability resolves.) Therefore, the Board finds that the Veteran's claim of service connection for an acquired psychiatric disorder must be remanded for a clarifying medical opinion. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, who have treated or evaluated him since service for his claimed disabilities. Ask the Veteran to identify all locations of VA treatment or evaluation for his claimed disorders and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto dated from February 2016 to the present time. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. The Veteran may submit medical records directly to VA. 2. Then, once these records have been obtained, refer the claims file the same VA examiner who conducted the September 2015 examination, or another VA clinical psychologist or psychiatrist if that examiner is unavailable. The claims folder must be made available to the examiner in conjunction with the examination. The examiner should specifically take into consideration the April 2013 VA treatment report which reflects a diagnosis of mood disorder with mild anxiety and depression. Consideration should be given to the Veteran's history and particularly to any statements regarding continuity of symptoms since service. For any psychiatric diagnosed during the pendency of the appeal which has resolved at the time of the examination, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its clinical onset in service or is otherwise related to the Veteran's military service, to include his presumed exposure to herbicides in service. If the examiner finds that it is unlikely that any psychiatric disorder diagnosed during the pendency of the appeal, which has since resolved at the time of the examination, had its onset in service or is otherwise etiologically related to the Veteran's military service, then the examiner should also express an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any psychiatric disorder was caused or aggravated (permanently worsened beyond natural progression) by the Veteran's service-connected coronary artery disease, tinnitus, bilateral hearing loss, and/or history of branch retinal artery occlusion of the left eye. If aggravation is found, identify the baseline level of disability prior to the aggravation and the permanent, measurable increase in severity caused by the service-connected disability. All opinions expressed must be supported by a rationale for why the examiner arrived at the opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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 remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).