Citation Nr: 1006045 Decision Date: 02/18/10 Archive Date: 03/02/10 DOCKET NO. 95-00 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Peter J. Meadows, Attorney at Law ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from August 1961 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1994 and March 1995 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). This case has a lengthy procedural history. In August 2006, the Board denied entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). That decision was appealed to the United States Court of Appeals for Veterans Claims (CAVC). The record contains a Joint Motion for Partial Remand (Joint Motion), dated in April 2008, wherein the Veteran's attorneys and the VA General Counsel (the parties) agreed to request remand of that portion of the August 2006 decision which denied entitlement to service connection for an acquired psychiatric disorder. In this regard, service connection for PTSD was also denied in the August 2006 Board decision, but that portion of the decision was expressly not at issue in the Joint Motion. In May 2008, an order of the CAVC was issued, remanding the Veteran's claim of service connection for an acquired psychiatric disorder. In September 2008, the Veteran's claim was again denied by the Board, and he appealed that decision to the CAVC. In August 2009, the parties submitted another Joint Motion, requesting that the Board's September 2008 decision be vacated and remanded for development and readjudication. In an August 2009 Order, the Court granted the motion and remanded the case to the Board for further appellate review. The case now returns to the Board following the Court Order. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran whenif further action is required. REMAND In the August 2009 Joint Motion, the parties agreed that the Board had not ensured compliance with its 2004 remand order, in violation of Stegall v. West, 11 Vet. App. 268, 270-71 (1998), or provide an adequate statement of reasons or bases for its determination regarding the Veteran's claim. In this regard, the parties noted that the Board ordered, in 2004, a psychiatric examination with instructions that the examiner offer an opinion as to the etiology of the Veteran's major depressive disorder and any other non-PTSD psychiatric disorder, to include an assessment regarding whether it is at least as likely as not that any present non-PTSD psychiatric disorder is related to any incident of military service. However, while a psychiatric examination was afforded the Veteran in April 2006, the examiner did not discuss whether any present non-PTSD psychiatric disorder is related to any incident of service. Consequently, the parties agreed that the matter should be remanded for the Board to order a new VA medical examination and opinion fulfilling the requirements of the 2004 Board remand. It is notable that the parties further agreed that the Board did not adequately consider and address the opinion by the July 2002 VA psychiatric examiner that the Veteran's impairment in psychiatric function probably pre-existed service and was aggravated by service. In consideration of the foregoing, this case must again be remanded for a medical examination and medical nexus opinion with respect to the Veteran's claim for an acquired psychiatric disorder. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a psychiatric examination. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. a. The examiner should identify any non- PTSD psychiatric disorder which has been demonstrated by the Veteran since filing his claim on January 19, 1994, and state whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any such identified current non-PTSD psychiatric disorder was caused by, or was initially manifested during, his active military service, to include consideration of any symptomatology shown therein or any incident therein; or whether such causation or initial manifestation is unlikely (i.e., less than a 50-50 probability). b. If the examiner believes that the Veteran has a psychiatric disorder which was present at entrance into service, the examiner should opine as to whether there is clear and unmistakable evidence (i.e., obvious or manifest) that such disorder developed prior to service, and, if it did, whether there is also clear and unmistakable evidence (i.e., obvious or manifest) that such disorder was not aggravated during service. c. The examiner should provide a thorough discussion of the Veteran's psychiatric history in the examination report, specifically address the opinion of the July 2002 VA psychiatric examiner, and confirm that the claims folder (which comprises two-volumes) has been reviewed. d. 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. e. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the baseline level of disability, and does not include an increase in the disorder which is due to the natural progress of the condition. f. If the opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. After the above development has been accomplished to the extent possible, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and given an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this remand is to obtain additional development and ensure due process. The Board does not intimate a decision, either favorable or unfavorable, at this time. 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. 2009). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).