Citation Nr: 18144419 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 13-21 592A DATE: October 25, 2018 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder other than depressive disorder, to include anxiety, is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1976 to July 1979, from July 1979 to September 1986, and from September 1986 to August 1994. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, inter alia, denied the Veteran’s claim for service connection for anxiety. In August 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in July 2013. In August 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) in Washington, D.C. A transcript of the hearing has been associated with the claims file. In November 2015, the Board expanded the claim on appeal to include other psychiatric disorders (consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009)), and remanded the expanded claim to agency of original jurisdiction (AOJ) for additional development. After attempting to accomplish the requested action, the AOJ denied the expanded claim ((as reflected in a July 2018 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In November 2015, the Board also remanded the issues of entitlement to service connection for depressive disorder and for irregular heartbeat for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ thereafter issued an SOC in March 2017. However, the Veteran did not submit a substantive appeal (via a VA Form 9, Appeal to Board of Veterans’ Appeals), therefore, the issues of entitlement to service connection for depressive disorder and an irregular heartbeat are not before the Board. As for the matter of representation, the Board observes that, in March 2009, the Veteran submitted a VA Form 21-22 (Appointment of Veteran Service Organization (VSO) as Claimant’s Representative) in which he designated Maryland Department of Veterans Affairs as his representative. He then submitted a VA Form 21-22 appointing Disabled American Veterans as his representative in October 2009. In April 2018, the Veteran submitted a VA Form 21-22 appointing Georgia Department of Veterans Service as his representative. The recognizes these changes in representation. Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. The Veteran contends that he began to experience anxiety in service and that such problems have continued in the years since that time. The Veteran also contends that what he believed to be heart problems in service were masked as anxiety. Pertinent to the current claim, a VA mental disorders examination was conducted in July 2009. The mental health professional who conducted the examination concluded that the Veteran did not have anxiety. Hence, the examiner did not provide any opinion as to the etiology of the Veteran’s claimed anxiety. During the August 2015 Board hearing, the Veteran testified that what he thought were heart problems, during service were actually manifestations of undiagnosed anxiety. The Board notes that a May 1994 STR documents that although the Veteran sought treatment for a possible heart murmur, the testing revealed that the Veteran did not have a heart murmur. Notably, VA treatment records added to the claims file after the July 2009 VA examination document the Veteran’s treatment for and diagnoses of anxiety. For example, anxiety was noted as stable in March 2013, mild anxiety was noted in March 2014, an October 2014 VA physician observed that the Veteran’s previous exercise stress test was normal and that the Veteran’s chest pains were likely related to anxiety, and in February 2015, a VA physician noted that the Veteran has a history of atypical chest pain and significant anxiety. More recently—and, since the prior remand—a May 2018 VA cardiologist related the Veteran’s perceived heart problems, which date back to service, to anxiety. Specifically, the VA cardiologist noted that the Veteran has a long-standing history of atypical chest pain syndrome that appears to be anxiety-related and further noted that results of a recent stress echocardiogram revealed no evidence of ischemia or heart disease. In sum, since the July 2009 VA examination, numerous VA treatment records document the Veteran’s treatment for and diagnoses of anxiety, and indicate a possible connection between the Veteran’s anxiety and his service. However, there has been no other examination or opinion that addresses the etiology of the Veteran’s diagnosed anxiety. Under these circumstances, the Board finds that a remand of this matter to have the Veteran undergo further VA examination, by an appropriate mental health professional—preferably, a psychiatrist or psychologist—is needed to obtain more definitive findings and opinion(s) as to diagnosis and etiology of the claimed disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion provided or obtained is adequate for the determination being made). Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA records, the claims file includes records of the Veteran’s treatment from the Savannah VA Outpatient Clinic, dated up to September 2018. Hence, there may be additional VA treatment records that have not yet been obtained. Therefore, the AOJ should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal (particularly regarding any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 3000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Savannah VA Outpatient clinic (and any associated facility(ies)) all outstanding records of evaluation and/or treatment of the Veteran, dated since September 2018. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matters within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA mental disorders examination, by an appropriate mental health professional—preferably, a psychiatrist or psychologist. The contents of the entire electronic claims file to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all psychiatric disorders, other than a depressive disorder—to include anxiety—currently present or present at any point pertinent to the current claim on appeal (even if now asymptomatic or resolved). Then, for each such diagnosed psychiatric disorder, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability had its onset in or is otherwise medically-related to service. In addressing the above, the examiner must consider all medical and other objective evidence of record, as well as all lay assertions, to include the Veteran’s assertions as to the occurrence of in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific diagnosis and/or associated symptoms in or shortly after service should not, alone, serve as the sole basis for a negative etiology opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel