Citation Nr: 18139668
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 15-46 093
DATE:	September 28, 2018
ORDER
The claim for service connection for depression and anxiety is dismissed as moot. 
REMANDED
Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is remanded.
Entitlement to service connection for asthma with benign granulomatous disease (claimed as chronic obstructive pulmonary disease (COPD)) as due to asbestos exposure is remanded.
FINDING OF FACT
The Veteran’s symptoms of depression and anxiety have been evaluated as part of his service-connected posttraumatic stress disorder (PTSD) disability and the service connection claim for depression and anxiety is moot.

CONCLUSION OF LAW
The claim for entitlement to service connection for depression and anxiety is dismissed as moot.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.101 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1968 to September 1970.  
By way of procedural history, in the July 2013 rating decision, the Veteran was denied, in pertinent part, service connection for a respiratory disability, diabetes, depression and anxiety.
The Board notes that the Veteran filed a claim for service connection for “anxiety and depression” in July 2012.  During the course of this appeal, the agency of original jurisdiction (AOJ) granted the claim for service connection for PTSD and assigned a 70 percent evaluation, based in part, on the Veteran’s symptoms of anxiety and depression.  See July 2016 and June 2018 rating decisions.  
The Board acknowledges that, with regard to psychiatric disorders, it is possible that one claim for service connection for a psychiatric disorder could at some point be considered a separate claim for service connection for a different psychiatric disorder.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (“We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability”).  That is not the case here, however, as the AOJ granted service connection for PTSD, indicating that it was inclusive of the Veteran’s symptoms of anxiety and depression.  Moreover, in an August 2017 notice of disagreement, the Veteran specifically indicated that a 70 percent rating was warranted for his PTSD disability due to symptoms of depression, anxiety, suicidal ideation, and panic attacks.  In other words, there is no indication, either lay or medical, that there are symptoms of another psychiatric disorder that are distinct from the one for which service connection has been granted.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  
As a result of the AOJ’s action, there no longer remains a case or controversy with respect to the Veteran’s claim for service connection for depression and anxiety.  Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2017).  As such, dismissal of this claim is warranted.
REASONS FOR REMAND
Initially, the Board notes that additional and pertinent VA treatment records have been added to the claims file since the last Statement of the Case dated in October 2015.  The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran.  See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted by the claimant or his representative with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration).  As noted above, this provision only applies to evidence submitted by the Veteran.  Therefore, the issues must be remanded to allow for AOJ consideration of the newly obtained evidence.
Further, in a January 2006 VA treatment record, it was noted that the Veteran was disabled and was receiving SSDI (Social Security Disability Insurance).  As these records may be relevant to his claims, the AOJ should obtain all records from the Social Security Administration (SSA) pertaining to the Veteran’s claim for disability benefits.  See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that “the possibility that the SSA records could contain relevant evidence... cannot be foreclosed absent a review of those records.”).
The matters are REMANDED for the following actions:
1. Contact SSA and obtain any records pertaining to the Veteran’s claim for disability benefits.  Add all such records to the claims file, and appropriately document if such records are unavailable. 
2. Then readjudicate the claims on appeal considering all evidence received since the October 2015 SOC.

 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Casadei, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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