Citation Nr: 18158693 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-04 956A DATE: December 17, 2018 REMANDED Entitlement to an acquired psychiatric disorder, to include depression, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1970 to November 1974, and again from November 1977 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois. The Veteran’s original claim was for entitlement to service connection for depression. However, the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran’s original claim for depression has been expanded to include any acquired psychiatric disorder, and the claim has been recharacterized as such on the title page. The Board notes the existence of a separate appeal from this Veteran that is currently active before the Board as well; a service connection claim for gastroesophageal reflux disease (GERD). However, since that other appeal originates from a different agency of original jurisdiction (AOJ) in Cleveland, Ohio, it will be adjudicated separately pursuant to the Board’s internal procedures. In addition, the Board is cognizant that the Veteran’s attorney has requested a 90-day delay for the GERD appeal in order to submit new evidence. The Board observes that the attorney made a similar 90-day delay request for this appeal back in November 2016, and as such, this particular appeal is now ripe for adjudication. As such, the Board will proceed with the adjudication of this appeal for service connection for an acquired psychiatric disorder. The Veteran, through his representative, submitted additional evidence in support of his claim after the September 2016 statement of the case, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c). Entitlement to an acquired psychiatric disorder, to include depression is remanded. The Veteran has claimed entitlement to service connection for an acquired psychiatric disorder, originally claimed as depression. Treatment notes from VA and private providers indicate different possible diagnoses, to include depressive disorder, anxiety, and adjustment disorder. A VA psychologist diagnosed the Veteran in August 2012 with adjustment disorder with mixed anxiety and depressed mood. A private psychiatrist diagnosed the Veteran in September 2016 with “depressive disorder with anxious distress features.” The Veteran’s sister and his ex-wife have provided lay statements saying they observed the Veteran as very depressed during the latter period of his active duty service. In addition, the Veteran, along with his sister and ex-wife, have asserted that the Veteran’s acquired psychiatric disorder is possibly due to his chronic gastrointestinal problems, which are now service-connected and characterized as ulcerated colitis, Crohn’s disease, and irritable bowel syndrome (IBS). Thus, the Board finds that the Veteran’s original claim for service connection for depression is now a claim for an acquired psychiatric disorder, to include as secondary to ulcerated colitis, Crohn’s disease, and irritable bowel syndrome (IBS). See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has never had a VA compensation and pension examination and opinion for service connection for his claimed acquired psychiatric disorder. Thus, a remand for a VA examination and opinion for service connection, to include both direct and secondary service connection, is necessary. The matter is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for a VA examination with a VA (or VA contracted) psychiatrist or psychologist to determine the nature and etiology of the Veteran’s acquired psychiatric disorder(s). The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s acquired psychiatric disorder is related to his active duty service, or are otherwise related to any in-service disease, event, or injury? If not, is it at least as likely as not (probability of fifty percent or greater) that the acquired psychiatric disorder was caused by the Veteran’s ulcerated colitis, Crohn’s disease, and irritable bowel syndrome (IBS) or any other service-connected disability? If the ulcerated colitis, Crohn’s disease, and irritable bowel syndrome (IBS) did not cause the acquired psychiatric disorder, is it at least as likely as not (probability of fifty percent or greater) that acquired psychiatric disorder was aggravated (an increase in severity) by the ulcerated colitis, Crohn’s disease, and irritable bowel syndrome (IBS) or any other service-connected disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the acquired psychiatric disorder by the service connected disability. Attention is invited to the August 2012 VA psychologist treatment note which diagnoses the Veteran with adjustment disorder with mixed anxiety and depressed mood. In addition, in September 2016, a private physician diagnosed depressive disorder with anxious distress features. Attention is also invited to the Veteran’s ex-wife and sister who observed the Veteran as depressed in part due to his chronic gastrointestinal disabilities, which are now service connected, in statements dated July 2010 and March 2016, respectively. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel