Citation Nr: 1754026 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-14 348 ) 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 dysthymia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from February 1984 to April 1984. This appeal arises before the Board of Veterans' Appeals (Board) from a May 2013 rating decision in which the Department of Veteran Affairs (VA) Lincoln, Nebraska, Regional Office (RO), in part, denied entitlement to service connection for depression/mental health condition. In November 2015, the Board remanded the appeal for further development. The Board issued a decision in September 2016, which denied the Veteran's claim. The Veteran appealed to the United States Court of Appeals for Veteran Claims (Court). In a June 2017 Joint Motion for Remand, the parties agreed to vacate the previous Board decision. In June 2015, the Veteran testified before a Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. This hearing was before a judge that is no longer available to adjudicate the claim. In an October 2017 VA notification letter, the Veteran was notified and given the option of requesting another hearing. In October 2017 correspondence, the Veteran affirmed that he did not want another Board hearing. Therefore, the Board will proceed accordingly. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the nature and etiology of the Veteran's dysthymia. The Veteran contends that his dysthymia is due to his period of service. Specifically, the Veteran asserts that his symptoms of dysthymia began during service and continued post separation from service. Once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In August 2013, the Veteran was afforded a VA examination. The examiner determined that it was less likely as not that the Veteran's current dysthymia was incurred in or caused by mental health complaints that occurred in March 1984. The examiner explained that there was no indication of treatment for mental disorder found in the records, the 1984 notation of depression was part of the mental status examination with no diagnosis, and the reason for the examination was labeled bedwetting. In a June 2015 Board remand, the Board's directives stated that, after the Veteran's VA and private medical records were associated with the file, the Veteran should be afforded another VA examination. The directives further stated that consideration should be given to the testimony and lay statements of the Veteran and his spouse regarding the onset of the Veteran's symptomatology. In a January 2016 VA examination, the same examiner from the August 2013 VA examination affirmed a finding of no nexus between the Veteran's current diagnosis and his military service. The examiner based this opinion on the lack progress notes in CAPRI of any medical treatment, or any indication in VBMS of medical treatment at present, or during the military for a mental disorder. The Board finds the January 2016 VA opinion to be inadequate. The VA opinion did not indicate consideration of the lay statements of the Veteran and his spouse regarding the onset and continuity of the Veteran's symptoms. Moreover, it appears that the Veteran's private medical records, which were subsequently associated with the claims file in February 2016, were not available for review at the time of the January 2016 examination. For these reasons, a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's claims file to an appropriate examiner for an addendum opinion. The examiner should determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include dysthymia. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner shall consider all other medical records associated with this file during review, including discussion of the March 1984 service treatment records, the April 2009 private treatment records, and the Veteran and his spouse's hearing testimony and lay statements regarding the onset of symptoms. The examiner is asked to offer the following opinion: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's acquired psychiatric disorder, to include dysthymia, was manifested in, caused by, or is otherwise etiologically related to his period of service. In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of symptoms. The examiner should explain the medical basis for the conclusions reached. 2. After any additional development deemed warranted, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal 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. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).