Citation Nr: 1308403 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 05-13 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disability, to include secondary to a service-connected right wrist disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran served with Reserve Components from 1974 to approximately 1996, performing active duty for training (hereinafter: ACDUTRA) and inactive duty training at various times. A period of ACDUTRA from August 18 through 31, 1985, became "active military service" by virtue of a right wrist disability incurred in the line of duty (see claims files, Vol 1). The term "active military service," includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a) (2011). The claimant achieved "veteran" status by virtue of that short period of active military service. A 'veteran' is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101 (2) (West 2002); see also 38 C.F.R. § 3.1 (d) (2011). The Veteran also performed a brief period of active military service from December 27, 1990, through January 18, 1991. While her official order to active military service is not of record, a DD Form 220, Active Duty Report, reflects that this active duty period was terminated effective January 18, 1991, for an unspecified reason or reasons. This appeal arises to the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in, Montgomery, Alabama, that in pertinent part denied service connection for manic depression. The Board reopened the case in April 2007. The Board remanded the case in April 2007, July 2009, April 2010, and July 2012 for further development. 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 The United States Court of Appeals for Veterans Claims (hereinafter: the Court) held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the Board's April 2010 Remand instruction, in a January 2009, a VA psychiatrist opined that the Veteran did not have a psychiatric disorder that was due to the service-connected right wrist disability (see claims files, Vol 4). In its April 2010 remand decision, the Board noted that the January 2009 VA medical opinion did not address whether the service-connected right wrist disability has aggravated any current mental disorder. The Board remanded the case and asked the VA psychiatrist to address the likelihood of aggravation by a service-connected disability. In July 2010, the VA psychiatrist re-examined the Veteran and offered an Axis I diagnosis of schizoaffective disorder. The psychiatrist explained that a schizoaffective disorder includes "mood disorders of depression." The psychiatrist stated that this depression is not due to pain in the wrist and explained that the Veteran's depression symptoms surpass the type of depression that would be associated with limited motion and pain in her wrist/arm. The psychiatrist also dissociated any auditory hallucination, of which there is a history, from the service-connected right wrist disability. Unfortunately, in dissociating the cause of depression from the service-connected disability, the VA psychiatrist failed to address the issue of aggravation. An opinion addressing the likelihood that the service-connected right wrist disability, which includes painful motion and pain on use, significantly weakened grip strength, swelling, mild muscle wasting and atrophy, decreased sensation, and limitation of motion of the wrist (see January 2009 VA peripheral nerves examination report), has aggravated any current psychiatric symptom, including depression and auditory hallucinations, is needed. In July 2012 the Board remanded the claim for an addendum by a psychiatrist or qualified substitute. On August 6, 2012 an examination was conducted by a VA psychologist who reviewed the claims file, evaluated the Veteran and provided an opinion. However the opinion only addressed whether the Veteran's psychiatric symptoms were caused by or a result of the service connected right wrist, and did not address aggravation. On August 9, 2012 an addendum was provided with an opinion addressing aggravation however, the addendum was provided by a physician assistant (PA-C), not the examining psychologist, and no rationale for the opinion was provided. A physician assistant is qualified to offer medical opinions, however the remand instructions specifically required the prior January 2009 VA psychiatrist or a qualified substitute to provide the opinion, and the addendum opinion was not offered by the VA psychologist who conducted the examination three days prior. Furthermore the opinion lacked any rationale or explanation and is therefore inadequate. An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). Accordingly, the case is REMANDED for the following action: 1. The AMC should return the claims files to the August 6, 2012 VA examining psychologist to offer an addendum medical opinion. The psychologist is asked to do the following: (a) Note a review of the claims files. (b) Provide an opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the service-connected right wrist disability (painful motion and pain on use, significantly weakened grip strength, swelling, mild muscle wasting and atrophy, decreased sensation, and limitation of motion of the wrist) has aggravated any psychiatric symptom (to include depression, schizoaffective disorder, auditory hallucinations). (c) The psychologist must offer a rationale for any conclusion. This means providing a statement explaining how the right wrist disability symptoms do or do not aggravate any psychiatric symptom If the requested psychologist is not available, a different psychologist or psychiatrist may be used. The Veteran may be re-examined if necessary. 2. Following the above, the AMC should review all relevant evidence and re-adjudicate the service connection claim. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and her representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board The appellant has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ MARK W. GREENSTREET 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) (2012).