Citation Nr: 18152582 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-34 453 DATE: November 23, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) to include depressive disorder, mood disorder, and neurocognitive disorder is granted. REMANDED Entitlement to service connection for PTSD is remanded. FINDING OF FACT The Veteran’s acquired psychiatric disorder, to include an adjustment disorder and neurocognitive disorder, are as likely as not due to his seizure disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD to include adjustment disorder, and neuro-cognitive disorder, as secondary to service-connected seizure disorder, have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to December 1968. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Additional pertinent evidence has been added to the record since the matter decided below was last adjudicated in a December 2012 statement of the case (SOC), so it has not been considered by the RO. However, since service connection is being granted for an acquired psychiatric disorder other than PTSD, there is no prejudice to the Veteran by considering this evidence in the first instance. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, 899 F.3d 1382 (Fed. Cir. 2018). 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 this appeal contains at least one issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on these matters. Based on the Veteran’s contentions, the matters directly affected by the stay are entitlement to service connection for hypertension, migraines, and a joint/muscle disorder. 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD to include depressive disorder, mood disorder, and neuro-cognitive disorder is granted. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted on a secondary basis. See 38 C.F.R. § 3.310. In this situation, there must be a current disability, the primary disability must be service connected, and there must be nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the claimant is afforded the benefit of the doubt. In a July 2016 substantive appeal, the Veteran’s attorney asserted that the Veteran’s psychiatric and cognitive disorders were secondary to the service-connected seizure disorder. See July 2016 Form 9. A May 2015 rating decision granted service connection for the Veteran’s seizure disorder and there is favorable nexus evidence that links it to the Veteran’s mood and cognitive disorder. On January 2018 VA examination, the clinician noted the Veteran had diagnoses of an unspecified adjustment disorder and mild neuro-cognitive disorder due to multiple etiologies. Based on the examination and review of the record, he opined that the Veteran’s mood (adjustment) disorder and cognitive disorder are at least as likely as not proximately due to or the result of his seizures. The opinion is probative and adequately supported by a rationale and there is no probative evidence to the contrary. Accordingly, service connection for a mood disorder and cognitive disorder is established. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. A July 2010 VA examination determined that the Veteran did not meet the criteria for a diagnosis of PTSD. Since then, however, a November 2016 VA treatment record contains an assessment of PTSD. See June 2018 CAPRI records. The January 2018 examination did not address whether the Veteran had a diagnosis of PTSD, so an examination is needed to determine whether he had a diagnosis that is associated with his service. The matter is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of his claimed PTSD. The claims file must be made available to and reviewed by the examiner. All necessary tests should be conducted and the results reported. a) Determine if the Veteran has a diagnosis of PTSD based on either the DSM IV or DSM-5 criteria. b) The examiner must explain how the diagnostic criteria are or are not met. If the criteria are met, opine whether it is at least as likely as not (50 percent probability or greater) related to the Veteran’s reported in-service stressors from fear of hostile military or terrorist activity. (Continued on the next page)   c) Provide the complete rationale for every opinion expressed. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst