Citation Nr: 1308549 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-05 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (other than posttraumatic stress disorder (PTSD)), currently diagnosed as an adjustment disorder and depressed mood. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to July 1970. This matter comes before the Board of Veterans' Affairs (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 7-9 (2009) (defining the scope of a claim at the time the claim is filed). The Veteran filed a notice of disagreement in May 2009. The Veteran was provided with a Statement of the Case (SOC) in December 2009. The Veteran perfected his appeal in February 2010 with a VA Form 9. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in April 2012. A transcript of this proceeding has been associated with the claims file. The issue of service connection for an acquired psychiatric disorder (other than PTSD), to include an adjustment disorder and depressed mood, was also previously before the Board in June 2012, at which time it was remanded to the Appeals Management Center (AMC) for further development. The AMC issued a Supplemental Statement of the Case (SSOC) on December 2012, in which it continued to deny service connection for an acquired psychiatric disorder (other than PTSD). The issue of service connection for PTSD was denied by the Board in the June 2012 Decision. The Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims (Court). Hence, the issue of service connection for PTSD is no longer on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA Medical Center treatment records dated from May 2012 to June 2012, which were considered in the December 2012 SSOC. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain an addendum to the April 2009 VA examination in accordance with the June 2012 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In April 2009, the Veteran was afforded a VA examination. The VA examiner diagnosed the Veteran with an adjustment disorder and depressed mood. The examination report did not reflect any opinion as to whether those diagnoses were likely the result of the Veteran's in-service experiences. In June 2012, the Board found that the evidence of record reflected diagnoses of an adjustment disorder and depressed mood, which the RO did not consider as a subject of the broader issue of service connection for an acquired psychiatric disorder other than PTSD. See Clemons, 23 Vet. App. at 1. As such, the Board remanded the case in order to obtain an addendum opinion to the April 2009 VA examination. In particular, the Board requested that the 2009 VA examiner provide an opinion as to whether a psychiatric disability entity (other than PTSD), to specifically include an adjustment disorder and depressed mood, were likely related to the Veteran's military service. Additionally, the following questions were asked: " Did a psychiatric disability entity other than PTSD, namely an adjustment disorder and depressed mood, have its onset during service, based on the service treatment records dated July 1966, June 1967, and May 1968 reflecting nervousness and/or difficulty sleeping; the Veteran's reports of stress due to his service; and his reports of over-use of alcohol until seeking VA treatment for alcohol abuse in 1983; OR was a psychiatric disability entity other than PTSD, namely an adjustment disorder and depressed mood, caused by an event during service, based on the Veteran's verified stressful account of experiencing a fire aboard the U.S.S. Enterprise in January 1969; OR was a psychiatric disability entity other than PTSD, namely an adjustment disorder and depressed mood, manifested within one year after the Veteran's discharge from service in July 1979?" Although the Board notes, with respect to service entries in July 1966, June 1967, and May 1968, that the VA examiner adequately addressed these entries within the context of the adjustment disorder and depressed mood in the July 2012 addendum, as well as addressing the question of the development of a psychiatric entity within one year post-service, no further compliance was shown with regard to the remaining question posed by the June 2012 remand instructions (i.e., was a psychiatric disability entity (other than PTSD), namely an adjustment disorder and depressed mood, caused by an event during service, based on the Veteran's verified stressful account of experiencing a fire aboard the U.S.S. Enterprise in January 1969?). In this regard, the Board notes that the examiner seemed to conflate the issue of PTSD, which has already been decided per the June 2012 Board decsion and is no longer at issue, with that of the adjustment disorder and depressed mood. Thus, the inquiry concerning the remaining question was frustrated by the extraneous discussion of PTSD, as the examiner did not provide a comprehensive etiological opinion with sole regard to the issues of an adjustment disorder and depressed mood. As such, any new addendum opinion should not include a discussion of PTSD and should instead focus on the issue of the current diagnosis of an adjustment disorder and depressed mood, as evidenced by the VA examination of April 2009. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the April 2009 and July 2012 VA examiner (and if that original examiner is no longer available, then send the claims file to another examiner of similar background and experience) to provide an opinion as to whether the current diagnosis of an adjustment disorder and depressed mood that the Veteran now has is related to his military service. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. All required testing must be performed. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resort to speculation, it must be so stated, and a supporting rationale provided for that opinion. Although the examiner has an independent responsibility to review the entire claims file, his or her attention is called to the Veteran's account of experiencing a fire aboard the U.S.S. Enterprise in January 1969, which has been verified by his service department. The examiner must offer an opinion addressing the following question: Based on a review of the evidence of record, is it at least as likely as not (a 50 percent or greater probability) that the current diagnosis of an adjustment disorder and depressed mood (see VA Examination Report, dated April 2009) that the Veteran now has was caused by an event during service, to include the Veteran's verified stressful account of experiencing a fire aboard the U.S.S. Enterprise in January 1969? Please explain the reasons for your opinion. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issue of service connection for an acquired psychiatric disorder (other than PTSD), currently diagnosed as an adjustment disorder and depressed mood, must be readjudicated. If the benefits remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Appellant 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. 2012). _________________________________________________ DEBORAH W. SINGLETON 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).