Bd. Vet.App. 190619-21480 (March 31, 2020)
Mar 31, 2020OUTCOME: Win - Service connection for an acquired psychiatric disorder, to include unspecified depressive disorder and recurrent major depressive disorder, as secondary to herpes simplex type 2 was granted.
The controversy centered on the the criteria for service connection for an acquired psychiatric disorder, as secondary to herpes simplex type 2, to be met. The VA was refusing to accept a private medic ... al opinion because it was done though telehealth, which, according to the VA, may only be performed by VA providers. The argument centered on how no regulation requires or permits the Board to wholly discount a report of a private mental health examination that was conducted by video. Critically, while VA’s adjudication procedures manual (M21-1) may prescribe such a requirement, the rules in the manual have not been subject to the notice-and-comment process that accompanies an amendment to the legally binding Code of Federal Regulations. Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008). Simply put, the AOJ’s determination that this evidence per se has “no merit,” had no merit.
