Citation Nr: 1804319 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 13-22 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for pulmonary embolism/blood clots. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Budd, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2011(psychiatric disorder) and July 2015 (38 U.S.C.A. § 1151 claim) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2017, the Board remanded these matters to allow a hearing to be scheduled regarding the psychiatric disorder claim and a statement of the case (SOC) to be issued for the 38 U.S.C.A. § 1151 claim. Although a hearing was scheduled in September 2017, the Board's Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran cancelled the hearing. Therefore, the hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.702(e). The June 2017 remand characterized the psychiatric disorder issue as excluding depression because the issue of entitlement to service connection for depression had been separately denied in February 2013 and October 2015 rating decisions, and the RO had acknowledged receipt of a notice of disagreement (NOD) to the October 2015 denial. Although the Veteran brought a claim for PTSD, the broad scope of Clemons v. Shinseki, 23 Vet. App. 1 (2009) encompasses other acquired psychiatric disabilities, as noted in the June 2017 remand. The January 2011 rating decision that is the subject of the current appeal pre-dates the rating decisions and claims for service connection for depression. The Board will recharacterize the issue to include depression to prevent the February 2013 and October 2015 denials from restricting the scope of an earlier claim to the detriment of the Veteran. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As to the 38 U.S.C.A. § 1151 claim, the June 2017 remand instructed the RO to issue a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran has yet to do so. Although the Board recognizes that a separate VACOLS entry has been made regarding the 38 U.S.C.A. § 1151 claim, indicating that development is ongoing, the fact remains that the June 2017 remand instruction has not been complied with at the time of the writing of this decision. Therefore, additional remand is required to ensure substantial compliance with the June 2017 remand pursuant to Stegall v. West, 11 Vet. App. 268 (1998). As to the acquired psychiatric disability matter, a January 2011 examination diagnosed the Veteran with mood disorder not otherwise specified (NOS) and opined that it is less likely than not caused by service because it is not the same as the condition identified during service (acute situational maladjustment and immature personality reaction). The examiner related the current mood disorder to multiple health conditions, life stresses, and financial stresses. However, this opinion does not take into account the Veteran's multiple assertions that he has felt depressed since service. In an October 2011 treatment note, he reported that he had been depressed and had self-esteem issues ever since the military. In March 2015, he reported that he was depressed almost nonstop since 1966. Although the Veteran is not competent to diagnose himself with clinical depression, he is competent to relate his experience of feeling depressed or emotionally unstable. The Veteran has also reported suicide attempts after service, as well as one suicide attempt during basic training. Although he denied attempted suicide in his February 1967 report of medical history, he did reference a suicide attempt during basic training in an October 1966 psychiatric record. A January 1967 notation in the Veteran's service treatment records (STRs) asserted that the Veteran was burdened with a severe situational problem which has little hope of being resolved whether or not he remains in the army or returns to civilian life. This January 1967 notation lends weight to the Veteran's assertion that he has experienced psychiatric symptoms since service. The January 2011 examination rationale is inadequate because it does not discuss the possibility that although the Veteran's current diagnosis is different from his in-service diagnosis, the symptoms that resulted in his current diagnosis began in service. An October 2015 examination diagnosed the Veteran with major depressive disorder with anxious distress, but did not discuss the Veteran's in-service psychiatric treatment. Therefore, the October 2015 examination is also inadequate. Upon remand, a new examination should be scheduled that considers the Veteran's in-service psychiatric treatment as well as his assertion of depression or emotional instability since service. The claims folder should also be updated to include VA treatment records compiled since May 22, 2017. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the Orlando VA Medical Center, and all associated outpatient clinics, dated from May 15, 2017 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. Schedule the Veteran for a VA psychiatric examination with an appropriate clinician. After reviewing the record and performing any necessary tests, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability that is etiologically related to service. The Veteran has stated that he was so disturbed by the rigors of basic training that he attempted suicide, and that he has continued to suffer from depression since that time. Specifically, the Veteran reported that he has been depressed and has had self-esteem issues ever since the military in an October 2011 treatment note, and he reported feeling depressed almost nonstop since 1966 in a March 2015 treatment note. Although the Veteran denied attempted suicide in his February 1967 report of medical history, he did reference a suicide attempt during basic training in an October 1966 psychiatric record. A January 1967 notation in the Veteran's STRs asserted that the Veteran was burdened with a severe situational problem which has little hope of being resolved whether or not he remains in the army or returns to civilian life. The examiner is asked to discuss the Veteran's report of depression and low self-esteem since service as well as the possibility of a relationship between the Veteran's current diagnosis and psychiatric symptoms noted in service, even if the Veteran's current diagnosis is different from his diagnosis in service. The opinion offered must be supported by a complete rationale. 3. After completing the above development, readjudicate the issue of entitlement to service connection for an acquired psychiatric disability. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 4. Provide the Veteran with a statement of the case addressing the issue of entitlement to compensation under 38 U.S.C.A. §1151 for pulmonary embolism/blood clots. The Veteran should be advised that a timely substantive appeal will be necessary to perfect the appeal to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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) (2017).