Citation Nr: 1729331 Decision Date: 07/26/17 Archive Date: 08/04/17 DOCKET NO. 13-28 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty with the United States Navy from August 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. In April 2017, the Veteran testified during a videoconference Board hearing. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for psychiatric symptoms which he asserts had their origins during military service. The record indicates that the Veteran was afforded a VA examination in August 2013. After reviewing the Veteran's history and conducting an examination, the examiner diagnosed bipolar disorder and concluded that it was not related to service. The examiner explained that there was no documentation of mental health treatment during service. In addition, the first relevant medical evidence is found in a mental health consult in 2011, approximately 35 years after separation from service. During his April 2017, hearing the Veteran, for the first time, raised the issue of secondary service connection for his psychiatric disorder. See April 2017 Hearing Transcript p. 17. [The Board notes that service connection is currently in effect for ankylosis of right ankle secondary to fractures of the tibia and fibula, lumbosacral strain with multi-level degenerative disc disease, and left ulnar neuropathy.] Although he has not offered any competent and credible medical or lay evidence that his psychiatric disorder was caused, or made worse, by his service-connected disabilities, the Board is required to consider all possible theories of entitlement for service connection. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). So, in order to afford the Veteran every opportunity to substantiate his claim and to assure that the duty to assist has been met, the Board will develop and consider the claim under the theory of secondary service connection. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that 38 C.F.R. § 3.310 (a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability). The Board also notes that the Veteran has identified the existence of outstanding VA medical records. He testified that he first began receiving VA mental health services in 1985 or 1986, from the Audie Murphy VA facility. He also reported treatment from the North Central Federal Clinic, the Frank Tejeda VA Outpatient Clinic, and the Vet Center in San Antonio, Texas. As these treatment records are pertinent to his claim, an attempt must be made to obtain them. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). See also Culver v. Derwinski, 3 Vet. App. 292 (1992) (VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA treatment providers who have seen him for psychiatric complaints/symptoms since his discharge from service in June 1976, and obtain copies of any identified clinical records pertaining to such treatment that are not already in the file. The Board is particularly interested in records from Audie Murphy VA Medical Center, the North Central Federal Clinic, the Frank Tejeda VA Outpatient Clinic, and the San Antonio Vet Center, as referenced in the Veteran's April 2017 hearing testimony. If no treatment records exist for this period of time, a negative response must be received. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA psychiatric examination. The electronic file should be made accessible to and be reviewed by the examiner. The examiner must elicit from the Veteran a detailed history of the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be performed, including psychological and/or personality testing, the examiner must review the results of any testing prior to completing the report Based on a personal interview and comprehensive review of the claims file the examiner should identify all current psychiatric diagnoses other than posttraumatic stress disorder (PTSD). For each diagnosis, the examiner should state whether it at least as likely as not, a probability of 50 percent or more: a) began during or was otherwise caused by military service, b) was caused by his service-connected right ankle, lumbar spine, or left ulnar neuropathy disabilities, or c) increased in severity beyond its natural progression due to these service-connected disabilities. If no aggravation is found, the examiner should specifically indicate so and explain why that is. If any diagnosed psychiatric disorder cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation. Likewise if aggravation (i.e., increase in severity beyond its natural progression) of a diagnosed psychiatric disorder by an already service-connected disability is not found, the examiner should specifically indicate so and explain why that is. In providing this opinion, the examiner should address the previous diagnosis of bipolar disorder. He/She is asked to offer an opinion even if the specific diagnosis has resolved (as the requirement for a current disability for VA purposes is met when the Veteran has a diagnosis such that he based his claim on the same, or had it during the pendency of the claim). If any previously rendered diagnosis was later corrected to reflect a more accurate diagnosis, the examiner should state the same. The examiner must also consider the Veteran's lay testimony in addition to the documentary evidence of record. A rationale for all opinions offered should be provided. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 3. After the above actions are completed, if the decision is adverse to the Veteran, issue a supplement statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ Thomas H. O'Shay 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) (2016).