Citation Nr: 1309767 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-24 172 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 50 percent for major depression with psychotic features. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to November 1987 and from August 1995 to June 1999. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2006 rating decision, by the Waco, Texas, Regional Office (RO), which denied the Veteran's claim of entitlement to a rating in excess of 50 percent for major depression with psychotic features. He perfected a timely appeal to that decision. In December 2010, the Board remanded the case for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in January 2012. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). When the case was before the Board in December 2010, it was remanded to the RO for further evidentiary development. At that time, it was determined that the September 2010 VA examination was inadequate in various particulars. Significantly, the Veteran's service representative, in a December 2010 brief, argued that the examination was inadequate because it was conducted by a social worker rather than a doctor. In addition, it was noted that the records from a February 2010 hospitalization had not been associated with the claims folder at the time of the September 2010 VA examination; therefore, the examiner likely did not have the ability to review those records prior to the examination. In its December 2010 remand, the Board directed that the Veteran be afforded a VA psychiatric examination in order to determine the severity of his major depression with psychotic features. The Board specifically requested that the examination be performed by a doctor. The examiner was directed to review the claims file for the examination and note relevant evidence contained therein, particularly the February 2010 hospitalization report. The Board also requested that the examiner offer an opinion as to whether the Veteran's major depression with psychotic features renders him unable to secure or follow a substantially gainful employment. Upon review of the evidentiary record, the Board notes that in compliance with the December 2010 remand, the Veteran was afforded a psychiatric examination in January 2011. Nonetheless, the Veteran and his representative argue that the January 2011 VA examination did not comply with the Board's December 2010 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271(1998) (a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.) The Board agrees. As noted by the representative, in its September 2010 remand, the Board instructed that the psychiatric examination must be conducted by a doctor. However, the January 2011 examination was conducted by a psychologist rather than a psychiatrist. In addition, a key question has remained unaddressed; namely, the examiner failed to answer the question of whether the Veteran's major depression with psychotic features renders him unable to secure or follow a substantially gainful employment. For the reasons set forth above, the Board finds that the January 2011 VA examination report is not complaint with the terms of its December 2010 remand. Thus, the Board finds that it is necessary to remand the claim again so that the development required by the December 2010 remand may be accomplished. Stegall, supra. The Veteran must be afforded a new VA examination by a doctor of psychiatry, not a social worker, a nurse practitioner, or a psychologist, to accurately determine the current level of severity of all impairment resulting from his service-connected major depression with psychotic features, to include whether it is sufficient to render him unemployable. Additionally, current treatment records should be obtained before a decision is rendered in this case. Accordingly, this case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should obtain any pertinent VA or other inpatient or outpatient treatment records, subsequent to January 2011, the date of the most recent pertinent evidence of record, should also be obtained and incorporated in the claims folder. Once again, the Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the claims file. In addition, the veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded an additional VA psychiatric examination in order to more accurately determine the current severity of his service-connected major depression with psychotic features. The examination must be conducted by a psychiatrist. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such review was completed. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's psychiatric disorder. The examiner should also assign a GAF score and provide an explanation of the assigned score. Also, the examiner should specifically opine as to whether the Veteran's major depression with psychotic features renders him unable to secure or follow a substantially gainful employment. In offering these opinions, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's competent and credible lay statements. A rationale for all opinions expressed must be provided. 3. To help avoid future remand, the AOJ must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand. All actions should be documented in the claims file. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should re-adjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decisions reached. An appropriate period of time should be allowed for response. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The purposes of the remand are to further develop the record and to accord the Veteran due process of law. No action is required of the Veteran until he receives further notice. 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). _________________________________________________ Thomas H. O'Shay 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) (2012).