Citation Nr: 18157285 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-24 208 DATE: December 12, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), for treatment purposes only under 38 U.S.C. Chapter 17 is remanded. REASONS FOR REMAND The appellant served in the United States Navy from August 1979 to September 1982 and was discharged under conditions other than honorable. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO, inter alia, denied the appellant’s claim of service connection for depression for treatment purposes only under 38 U.S.C. Chapter 17. The appellant disagreed with the RO’s determination, and a Statement of the Case was issued in March 2016. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). As such, the Board has recharacterized the claim on appeal consistent with Clemons. The Board notes that in connection with his appeal, the appellant requested and was scheduled for a videoconference hearing before a Veterans Law Judge, to be held in November 2018. He did not appear at the hearing, did not request postponement, and has not shown good cause for not attending the hearing. Pursuant to 38 C.F.R. § 20.702(d), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing had been withdrawn. 1. Chapter 17 for Acquired Psychiatric Disorder The appellant contends that service connection for treatment purposes only, under Chapter 17 is warranted for his acquired psychiatric disorder, to include depression and PTSD. The health-care and related benefits authorized by Chapter 17 shall be provided to certain former service persons with administrative discharges under other than honorable conditions, for any disability incurred or aggravated during active military, naval, or air service in line of duty. 38 C.F.R. § 3.360 (a). With certain exceptions such benefits are furnished for any disability incurred or aggravated during a period of service that is terminated by a discharge under other than honorable conditions. However, such benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 (c) applies. 38 C.F.R. § 3.360 (b). In making determinations of health-care eligibility, the same criteria will be used as are applicable to determinations of “service incurrence” and “in line of duty” when there is no character-of-discharge bar. 38 C.F.R. § 3.360 (c). An August 1983 administrative decision indicated that the Veteran is not entitled to benefits under the laws administered by VA, but that he is entitled to health care under Chapter 17, Title 38 for any disability to be service connected. Thus, the issue before the Board is whether the Veteran is entitled to service connection for a psychiatric disorder for purposes of treatment rather than compensation. Significantly, The Federal Circuit has indicated that 38 U.S.C. § 5103A(d) applies only to disability compensation claims. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). In contrast, the general duty to assist provision, 38 U.S.C. § 5103A(a)(1), provides that VA will “make reasonable efforts to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” This broad provision applies to the instant claim for treatment under Chapter 17. Moreover, while 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348. The appellant’s service treatment records show that in October 1980, the Veteran reported that he fell on his back, and complained of upper and mid back pain. He indicated that he developed vague pops on the right side of neck often spontaneously, sometimes when taking a deep breath that travels from top of shoulder. The clinician determined that there was no evidence of orthopedic pathology. The clinician noted the appellant exhibited a flat affect. Psychology consult mandatory was noted. At the November 1980 psychiatric evaluation, the clinician determined that the appellant’s affect was flat, but there was no evidence of psychosis or neurosis. Post-service treatment records indicate that in February 2010, the Veteran was diagnosed as having PTSD. In a January 2013 statement, the Veteran reported the he suffered a severe whip lash injury in service that changed his life forever. He asserted that during the aftermath of the whiplash, his military service began a spiral downfall. The Veteran noted that he continued to seek help for his whiplash and depression. In a May 2016 statement, the Veteran reported that he suffered a severe whiplash injury that has imposed lifelong psychological and social problems. The evidence of record reflects a diagnosis of an acquired psychiatric disorder, as well as, symptoms in and since service. The Veteran has not been afforded a VA examination in conjunction with the claim for treatment purposes for his acquired psychiatric disorder. As it cannot be said that there is no reasonable possibility exists affording the Veteran a VA examination would aid in substantiating his claim, a remand is warranted for a VA examination as to the etiology of the Veteran’s acquired psychiatric disorder. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, to include depression and PTSD. The claims file, including a copy of this remand, should be reviewed by the examiner. As to any diagnosed psychiatric disorder other than PTSD, the examiner is to provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that a such disorder had its onset in service or is otherwise related to military service, to include the injuries described in the lay statements. If PTSD is diagnosed, the examiner should indicate whether it is related to an in-service stressor. (Continued on the next page)   The examiner must provide a comprehensive rationale for all opinions provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel