Citation Nr: 1102292 Decision Date: 01/20/11 Archive Date: 01/26/11 DOCKET NO. 04-40 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for pain and numbness from the face, neck, and right upper extremity allegedly resulting from VA recommended physical therapy traction treatment in December 2001. REPRESENTATION Appellant represented by: Amrit K. Sidhu, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Heather M. Gogola, Counsel INTRODUCTION The Veteran had active service from January 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (board) on appeal from a January 2004 rating determination of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). In September 2005 and November 2007, the Board remanded this matter for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board remanded this case in November 2007 because a VA examiner, in a post-remand August 2006 report, did not indicate whether the Veteran's prior diagnoses were still present, and, if they were present, whether it was at least as likely as not that they were caused by or exacerbated by negligence or fault on the part of VA treatment providers in December 2001. The Veteran subsequently underwent two VA examinations in February 2008 that contain conflicting findings as to whether there is a current disability etiologically related to December 2001 VA treatment, but the examiners again completely failed to address the question of negligence and fault. The Court has held strongly that failure to comply with remand instructions will result in a Board decision being vacated, as VA claimants have the right to compliance with remand instructions. See Stegall v. West, 11 Vet. App. 268, 270-1 (1998). Further efforts are thus needed to procure the needed medical opinion. Moreover, the VA neurologist who conducted the February 2008 VA examination raised the possibility of symptoms on "a hysterical basis rather than anatomical" and recommended "a psychiatric evaluation of this veteran" to aid with the final disposition of the case. Such an examination is "necessary" under 38 C.F.R. § 3.159(c)(4) (2010) to fully address the Veteran's claim, as VA's duty to assist extends to the conducting of a supplemental examination recommended by another VA examiner. See Hyder v. Derwinski, 1 Vet. App. 221, 224-25 (1991); see also Hayes v. Brown, 9 Vet. App. 67, 74 (1996). The Board regrets further remand action in this case. However, such action is absolutely mandatory in light of Stegall, as well as the commentary of the February 2008 VA neurological examiner. Accordingly, the case is REMANDED for the following action: 1. The Veteran's should be examined by a VA psychiatrist. Following a review of the claims file, an psychiatric evaluation, and consideration of the Veteran's contentions, the examiner should render an opinion as to the extent to which his reported pain and numbness from the face, neck, and right upper extremity are of a "hysterical" or other psychosomatic basis, as opposed to a purely physical/anatomical basis. If the psychiatrist finds insufficient evidence to establish a psychiatric component to the symptoms, he or she should so state. All opinions and conclusions provided by the psychiatrist must be supported by a complete rationale in a typed examination report. 2. The Veteran's claims file should then be reviewed by a VA neurologist or orthopedist. This doctor should, following a thorough review of the claims folder, answer the following question: does the Veteran have a current and chronic muscular or neurological disorder of the right side of the face, neck, and right upper extremity that was at least as likely as not (e.g., a 50 percent or greater probability) caused or exacerbated by a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault, or an event not reasonably foreseeable, in December 2001? The opinion of the VA psychiatrist, noted above, should be considered. All opinions and conclusions expressed must be supported by a complete rationale in a typewritten report. 3. If the claim is not fully granted, issue a Supplemental Statement of the Case to the Veteran and his representative, before returning the case to the Board after an appropriate period of time, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. 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. 2010). _________________________________________________ A. C. MACKENZIE Acting 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) (2010).