Citation Nr: 0815132 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 02-17 172 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for a mood disorder, claimed as secondary to service-connected xerosis and dyshidrotic eczema. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from June 1971 to October 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal, in part, from a July 2003 rating decision which denied service connection for a mood disorder secondary to the service-connected skin disorder. In July 2006, the Board, in part, denied secondary service connection and the veteran appealed the decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In September 2007, the Court granted a Joint Motion to vacate and remand the July 2006 Board decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As a result of the Order of the Court, the Board has been directed to undertake appropriate action consistent the Joint Motion for Remand. In the Joint Motion, it was argued, in essence, that the Board did not provide adequate reasons and basis for denying the veteran's claim for a mood disorder or for finding that the veteran's failure to report for a scheduled VA psychiatric evaluation was without good cause. The parties agreed that there is no record in the claims file that the veteran was ever notified of the scheduled VA psychiatric examination. It was also noted that the veteran made reference to the fact that he had not been given a VA examination for his mood disorder in his notice of disagreement in June 2003. It was asserted that the veteran kept his VA dermatologic appointment for disabilities that were jointly on appeal at that time, and that he would have shown up for a psychiatric examination if he had received notice. Under the circumstances in this case, the Board finds that the veteran should be scheduled for another VA psychiatric examination. In regard to the veteran's claim, it should be noted that service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, in Allen v. Brown, 7 Vet. App. 439 (1995), the Court held that service connection may be granted on a secondary basis for a nonservice-connected disability which is "proximately due to or the result of" a service- connected disability. As well, notice is taken that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the RO for the following action: 1. The AMC should send the veteran a letter providing the notice required under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) for his claim of secondary service connection for mood disorder, including what is required to establish a disability rating and effective date per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC should take appropriate steps to contact the veteran and obtain the names and addresses of all medical care providers who treated him for any psychiatric disorders since June 2007. After securing the necessary release(s), the AMC should attempt to obtain all records not already associated with the claims file. If any records identified by the veteran cannot be obtained, he should be so informed and it should be documented in the claims folder. 3. The veteran should be afforded a VA psychiatric examination. The claims folder and a copy of this REMAND should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should review the claims folder and provide an opinion as to whether it is at least as likely as not that any identified mood disorder is proximately due to, the result of, or permanently aggravated by the service-connected skin disorder. If aggravation is noted, the degree of aggravation should be quantified, if possible. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If the examiner is only able to theorize or speculate as to the relationship, if any, between any identified mood disorder and his service-connected skin disorder, this should be so stated. A complete rationale must be provided for all conclusions reached and opinions expressed. The findings should be typed or otherwise recorded in a legible manner for review purposes. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2007). 6. After the requested development has been completed, the claim must readjudicated based on all the evidence of record, all governing legal authority, including the VCAA and implementing regulations, and any additional information obtained as a result of this remand. This should include consideration of whether any identified mood disorder is proximately due to or the result of, or aggravated by the service-connected skin disorder. The provisions of Allen v. Brown, 7 Vet. App. 439 (1995) should be considered. If the benefits sought on appeal remain denied, the veteran and his representative must be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran 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.A. §§ 5109B, 7112 (West Supp. 2007). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).