Citation Nr: 1752361 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-18 247 ) 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, other than posttraumatic stress disorder (PTSD), to include depressive disorder, mood disorder, and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1964 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In November 1970, the Board denied service connection for anxiety reaction on the basis that the nervous condition diagnosed as anxiety reaction was first reported about two years after service, and was not incurred in or aggravated by active service. In a November 2013 decision, the Board, in pertinent part, denied entitlement to service connection for service connection for PTSD, reopened the Veteran's claim of entitlement to service connection for an anxiety disorder, and remanded the underlying service connection claim for additional development. In April 2016, the Board remanded the claim for additional development, to include obtaining updated medical records and providing the Veteran with a VA addendum opinion. In addition, the Board recharacterized the issue on appeal, as reflected on the cover page, given the nature of the Veteran's claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The case has now been returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that an additional remand is necessary to obtain another addendum medical opinion with regards to the Veteran's claim on appeal. In its April 2016 remand, the Board specifically asked that the examiner address various medical records, lay assertions, and psychiatric diagnoses rendered throughout the appeal period. However, the examiner's resulting June 2016 opinion failed to address medical and lay evidence regarding as directed by the Board, and reflects a less than thorough review of the evidence. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA medical evidence, specifically to include those dated since the most recent supplemental statement of the case. 2. Then, regardless of whether or not additional evidence is received, return the claims file to an appropriate VA examiner for an addendum opinion. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to: (a) Identify all psychiatric disorders the Veteran has been diagnosed with post-service. If certain diagnoses are no longer present, explain their etiology or how they have been resolved. (b) For any psychiatric disorder diagnosed during the pendency of the appeal (since June 2009), provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any psychiatric disability had its onset in service, or is the result of disease or injury incurred or aggravated during service. In doing so, the examiner is specifically asked to ADDRESS the following: (i) The Veteran's competent and credible reports of serving in an artillery unit in Vietnam. Note that the lack of mental health treatment in service does not diminish the credibility of the Veteran's statements that he experienced anxiety attacks in service. (ii) Post-service treatment records dated April 1968, which noted the Veteran's reports of confusion, unfounded worry, fears of impending danger, memory impairment, insomnia, and loss of hair. He credibly reported that the onset of these symptoms was during service, but that he never went to sick call. The provisional diagnosis was severe anxiety reaction, and the Veteran was evaluated for admission for psychiatric treatment. (iii) A May 1968 statement from the Veteran, in which he reported that he was treated for a nervous condition within five months after his discharge from service. (iv) A statement from the Veteran dated August 1968, in which he reported that he suffered from several "attacks of minor intensity" while in Vietnam, for which he received treatment in field dispensaries where treatment was made "off records and with no other medicines but tablets." He also indicated that in July 1966 he suffered a nervous attack, lost consciousness, and had to be taken away from work. (v) The Veteran's May 1970 hearing testimony that a month after his discharge from service, he was treated for a nervous condition. (vi) The Veteran's reports during an April 2006 VA Agent Orange Registry examination that he suffered from a nervous condition since Vietnam. (vii) VA treatment record dated October 2006, indicating that the Veteran reported feeling nervous for the past 40 years and that he has been prescribed Valium by a family physician in the past. The Veteran also reported feeling depressed "for many years." The Veteran was diagnosed with depression and was prescribed psychiatric medication. (viii) The Veteran's reports during a February 2007 VA primary care visit that he had anxiety and was prescribed Lorazepam on an as-needed basis. (ix) VA primary care note dated March 2008, showing that the Veteran reported nervousness and poor sleep and that he used to take Valium in the past. The assessment was depressive disorder. (x) The Veteran's statements in his July 2010 VA Form 9 that his psychiatric condition is related to his war experiences and the stressors that he experienced in Vietnam, and a July 2010 VA treatment record showing that the Veteran reported emotional instability and anger outbursts. The assessment was "dementia with behavioral alterations." (xi) VA treatment records dated from August 2015 to February 2016 showing that the Veteran received regular psychiatric treatment for a mood disorder and the attached problem list reflecting additional diagnoses of depressive disorder and anxiety. The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. **If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion.** 3. After completing any other development that may be warranted, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JENNIFER HWA 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) (2016).