Citation Nr: 1305145 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 06-33 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depression, anxiety, cognitive impairment, and mood disorder, to include as secondary to service-connected bilateral pterygium. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to September 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2005 rating decision by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the Veteran's claim for service connection for an acquired psychiatric disorder. The Veteran then perfected a timely appeal of the matter. In June 2010, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The case was then returned to the Board, and in January 2012, the Board denied the acquired psychiatric disorder claim on the merits. The Veteran appealed the Board's decision to the Court. In September 2012, the Court granted a joint motion to remand (JMR) agreed upon by the Veteran and the Secretary of VA. The claim was remanded back to the Board. The appeal is again REMANDED by the Board to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the September 2012 JMR, the parties found that the August 2011 VA medical opinion did not contain sufficient reasoning and was therefore inadequate. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (once VA undertakes to provide a medical opinion, it must provide one that is adequate). The parties observed that the August 2011 VA examiner found that the Veteran's "service-connected pterygia is having a minimal impact on [his] vision" and thus his service-connected pterygia "appears to be a non-factor" in his depression. The parties maintained that the examiner did not address whether the Veteran's pterygia could have caused or aggravated the Veteran's depression while the pterygia was active. The parties maintained that the examiner did not address whether the service-connected pterygia could have caused or aggravated the Veteran's depression, and whether the depression could have continued after the service-connected pterygia improved. The parties noted that such medical opinion is necessary because there is evidence of record indicating that the Veteran's pterygia and depression had previously been contemporaneous. For example, the April 26, 2005 medical opinion from Dr. S.V. states that the Veteran was depressed due to vision loss caused by pterygium, and in an August 9, 2004 opinion, Dr. B.L. opined that the Veteran's pterygia was active, and he recommended that the Veteran consult an ophthalmologist to see if surgery was possible. Accordingly, this case must be remanded to comply with the JMR. Accordingly, the case is REMANDED for the following actions: 1. Arrange for the August 2011 VA examiner (or if the examiner is no longer available, a suitable replacement) to provide an addendum medical opinion to the prior opinion. The claims folder and a copy of this remand must be made available to the examiner for review. The examiner must specifically answer the following questions as directed by the Court approved JMR: In light of the April 26, 2005 medical opinion from Dr. S.V. that stated that the Veteran was depressed due to vision loss caused by pterygium and an August 9, 2004 medical opinion from Dr. B.L. that indicated the Veteran's pterygia was active for which he recommended that the Veteran consult an ophthalmologist to see if surgery was possible: A) Is it at least as likely as not that the Veteran's depression was caused by his service-connected pterygium while the pterygia was active and continued after the service-connected pterygia improved)? B) Is it at least as likely as not that the Veteran's depression was aggravated (permanently worsened beyond the natural progression) by his service-connected pterygium while the pterygia was active and continued after the service-connected pterygia improved)? 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 that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the evidence of record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible. 2. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).