Citation Nr: 1806866 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-19 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to service connection for depression. The RO continued the denial in December 2011. The Veteran was scheduled to appear at a Board hearing in April 2017. The record contains letters sent to the Veteran's address of record in March 2017, noting the date, place, and time of the hearing, which were not returned as undeliverable. The Veteran did not report for the April 2017 videoconference hearing. Therefore, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Under the VCAA, VA must provide an examination when there is competent evidence of persistent or recurrent symptoms of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). The threshold for finding that symptoms of a disability may be associated with service is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the Veteran's 1981 military personnel records 1981 reflect the Veteran received two Article 15s for failing to show to an appointed place of duty and leaving a place of duty. He also received multiple letters of counseling indicating the Veteran had confrontations with peers and superiors, lack of motivation and poor attitude, slight somatic problems, difficulty with peer relations, difficult to motivate, had a passive aggressive personality, and showed "disrespect" towards his supervisors. The Veteran's DD-214 reflects that the Veteran was discharged due to unsuitability, defective attitude, or inability to expend effort constructively. There is also competent lay evidence of manifestations of symptoms of depressions during and since service. Moreover, the Veteran's statements have indicated that he suffers from persistent or recurrent symptoms of depression. While veterans are not competent to opine as to whether they have a psychiatric disorder, Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"), they are competent to report symptoms. As there is competent evidence of manifestations of symptoms of psychiatric symptoms during and since service, a VA examination to determine whether the Veteran has a current psychiatric disability and whether it is related to or had its onset during service is warranted.. See McLendon, 20 Vet. App. at 83. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the matter is being remanded, any updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Accordingly, the appeal is REMANDED for the following action: 1. Obtain any outstanding updated VA treatment records. 2. Schedule the Veteran for a VA examination, with an appropriate health care professional to determine the etiology of any psychiatric disability. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. Based on the examination and review of the record, the examiner should clearly identify all psychiatric disabilities found and then should determine: (1) whether it is as least as likely as not (50 percent probability or more) that any psychiatric disorder had its onset during service or was otherwise causally or etiologically related to service, to include consideration of the military personnel records, which reflect the Veteran received two Article 15 disciplinary actions and multiple letters of counseling, and was discharged due to his behavior. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 3. After completing the above, and any other development deemed necessary, readjudicate the claim. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).