Citation Nr: 1642233 Decision Date: 11/02/16 Archive Date: 11/18/16 DOCKET NO. 09-40 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder other than PTSD, to include major depressive disorder (MDD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, D.J.B., and G.L.B. ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran had active service from June 1977 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and May 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In an October 2011 decision, the Board found that new and material evidence was presented during the appeal period for the September 2006 rating decision with respect to the issue of entitlement to service connection for PTSD. Thus, it was considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 CFR 3.156(b). Therefore, the Board found that the September 2006 and May 2007 rating decisions were the actions on appeal, and as such those same rating decisions have been identified here. By way of background, in October 2011, in addition to reopening the Veteran's claim of entitlement to service connection for PTSD, the Board dismissed claims of service connection for a skin disorder, diabetes mellitus type II, and hypertension and therefore they are no longer on appeal. The scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Review of the evidentiary record reveals a current diagnosis of major depression, as well as PTSD, on Axis I. As such, service connection for MDD is also on appeal as noted on the title page. As noted in the October 2011 Board decision regarding the Veteran's current diagnosis of MDD, it was observed that the RO previously denied service connection for an adjustment disorder with depression in a February 1989 rating decision. At that time, the RO noted that the Veteran had been hospitalized from April 15, 1988, to April 22, 1988, with a diagnosis of adjustment disorder with depressed mood; the RO found that such disorder was a constitutional or developmental abnormality and that no neuropsychiatric disorder had been shown in service. The U.S. Court of Appeals for the Federal Circuit, in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), held that a claim for one diagnosed disease or injury cannot be prejudiced by the result in a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). While the RO generally considered depressive symptoms when it denied the Veteran's claim in February 1989, the Veteran was diagnosed with a different mental disorder at that time (i.e., adjustment disorder with depressed mood). Thus, in consideration of the above case law and the fact that the Veteran now has a diagnosis of major depression on Axis I, the Board determined in October 2011 that it would consider the Veteran's service connection claim for a psychiatric disorder other than PTSD (i.e., major depression) as an original claim rather than a request to reopen the previously denied claim, which would require the presentation of new and material evidence sufficient to reopen the claim before evaluating the claim on the merits. When this matter was last before the Board in May 2013, it remanded the issues on appeal for the issuance of a Supplemental Statement of the Case (SSOC). That SSOC having been issued, the Board finds the directives have been complied with. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In March 2013, the Veteran was notified by the Board that the Veterans Law Judge who had presided at the Veteran's hearing in May 2011was no longer employed by the Board, and was asked whether he would like an additional hearing. In the Board's May 2013 remand, it was incorrectly observed that the Veteran had not responded in a timely manner to a request that he inform the Board as to whether he would like such a hearing. In fact, in response to that offer, the Veteran had requested an additional travel Board hearing in March 2013. There is no evidence in the record that this request was ever withdrawn. As such, the Board must remand the claim so that the requested hearing can be scheduled. 38 C.F.R. § 20.704(a). Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a travel Board hearing before a Veterans Law Judge at the RO at the earliest available opportunity, in accordance with applicable procedures, and notify the Veteran of the date and time thereof. 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 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 A. PAPPAS 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).