Citation Nr: 18150788 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-28 496 DATE: November 15, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder, anxiety, and posttraumatic stress disorder (PTSD) is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to October 1969. These matters come to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. A hearing was conducted by a Decision Review Officer in March 2016. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As the Veteran’s claim of entitlement to service connection for diabetes mellitus may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder, anxiety, and posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that he is diagnosed with a psychiatric disorder that is related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In the present case, the Veteran has screened negative for depression. However, as stated above, during the August 2013 VA examination for PTSD the VA examiner noted symptoms of anxiety. During the same VA examination, the Veteran was not found to have a diagnosis of PTSD. However, the Veteran did meet multiple parts of the diagnostic criteria including experiencing an in-service stressor. The VA examiner also noted efforts to avoid activities, places, and people that arouse recollections of trauma. Symptoms of hypervigilance and anxiety were also noted. The United States Court of Appeals for Veterans Claims has held that the scope of a psychiatric disorder claim includes any psychiatric disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of the record, regardless of the diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board finds that the reported symptoms of anxiety is reasonably encompassed in the Veteran’s claim for depression. Therefore, in light of Clemons, the Board finds it appropriate to recharacterize the claim as entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, and PTSD. The Board recognizes that while VA medical records address the Veteran’s negative screening for depression, no VA examiner has given an opinion regarding entitlement to service connection for depression or anxiety. A VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81; 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). After recharacterizing this claim, the Board finds that the elements of McClendon have been met. As a result, the Veteran’s claim will be remanded to receive a new VA examination to determine whether the veteran has a current disability and the etiology of any such disability. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding VA and private treatment records pertinent to the Veteran’s claims. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include depressive disorder, anxiety disorder, and PTSD. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s experiences in combat. After interview and examination of the Veteran, and review of his claims file, the examiner must: a. Identify all current psychiatric disorders found to be present; and b. As to each diagnosed psychiatric disorder, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the condition was incurred during or was otherwise related to the Veteran’s active duty service. c. A complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. 3. Once this is completed, the issue on appeal should be readjudicated. If the benefit sought on appeal is denied, issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hebert, Law Clerk