Citation Nr: 1310003 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-28 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2011, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. The Board denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD in an August 2011 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the August 2011 decision as to that issue. The Court granted the JMR in an August 2012 Order. This issue returns to the Board for further consideration. The Board notes that inasmuch as entitlement to service connection for PTSD was denied in an unappealed rating decision dated in August 2009, that issue is not part of the current claim for service connection for an acquired psychiatric disability. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In the June 2012 JMR, the parties determined that the Board did not provide adequate reasons and bases for its findings that 1) the Veteran's lay evidence lacked credibility, because that determination was based upon the absence of records supporting his claim; and 2) the Veteran was not entitled to a VA etiological examination under 38 U.S.C. § 5103A(d)(2). See JMR, p. 2. Thus, the Board must remand this matter for compliance with the Court's August 2012 order granting the parties' joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled). On remand, the RO should schedule the Veteran for a VA etiological examination so that a clinician can examine the Veteran and review the claims file, and then provide an opinion as to whether it is at least as likely as not that any acquired psychiatric disorder diagnosed on or after the claim date (i.e., November 19, 2009) results from the Veteran's active service. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner's review of the record should include the Veteran's statements describing a fellow soldier's suicide; his own attempted suicides, in service and in 1988; and his substance abuse starting in service. The examiner should provide a rationale for all opinions provided, including for any opinions on the credibility of the Veteran's statements above. Additionally, the examiner should consider pertinent VA treatment records including those dated April 2011, March 2011, and February 2010. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA psychiatric examination. The claims file and a separate copy of this remand must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. 2. The examiner must first determine whether the Veteran currently has an acquired psychiatric disorder, to include depression and/or a mood disorder, on or after the claim date (i.e., November 19, 2009). If the examiner finds that the April 2011 VA clinician's diagnosis of a mood disorder and/or the March 2011 VA clinician's diagnosis of depression is inaccurate, then s/he should explain why. For each acquired psychiatric disorder diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not that any such disorder had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should provide a rationale for all opinions provided, including for any opinions on the credibility of the Veteran's statements. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claim should be readjudicated based on all the evidence of record, to include any evidence received since the issuance of the May 2011 statement of the case. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. By this remand the Board intimates no opinion as to any final outcome warranted. 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). 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). _________________________________________________ JOHN H. NILON 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).