Citation Nr: 1310459 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 04-23 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to a disability rating in excess of 20 percent for service connected residuals of a crush injury to the left great and second toes. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1985 to January 1986 and from January 1991 to July 1997, which included service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Waco, Texas, Regional Office (ROs) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2006, and a transcript of this hearing is of record. In July 2012 the U.S. Court of Appeals for Veterans Claims (Veterans Court) issued an order granting the parties' Joint Motion for Remand (Joint Motion) and remanding the case back to the Board for compliance with the Joint Motion. Unfortunately, the Veteran's claim requires further development. Accordingly, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. REMAND In the Joint Motion, the parties agreed that a remand to the Board was necessary for the Board to request an addendum opinion to the Veteran's February 2009 VA psychiatric examination and clarification of the Veteran's January 2008 VA orthopaedic examination. The parties also agreed the Board should adjudicate the question of service connection for the Veteran's diagnosed depression. Psychiatric disability In February 2009, the Veteran underwent a VA psychiatric examination. The February 2009 examiner diagnosed the Veteran with depression. Given the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), issued after the examination in question, which found that the scope of a psychiatric disability claim includes any psychiatric disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and other information of record, the Board has re-characterized the issue on appeal to entitlement to service connection for acquired psychiatric disorder, to include PTSD and depression. The Board finds an addendum opinion to the February 2009 VA psychiatric examination is needed for the examiner to consider potential additional stressor information as described by the Veteran in his February 2009 Gulf War examination. Specifically, at his Gulf War examination the Veteran described being involved in multiple chemical alarms in service. The Veteran did not report that information at his VA psychiatric examination, and it is unclear whether the examiner was aware of the information. The examiner concluded that the Veteran's psychiatric conditions were not service connected; however, the psychologist also suggested that his opinion might change if he were presented with additional stressor event information. Toe disability In January 2008, the Veteran underwent a VA orthopaedic examination. The examiner stated at one point in the report that the Veteran experiences pain, weakness, or fatigability at rest, standing, or walking, but then later in the report stated that repeated moves did not reveal pain, fatigue, or weakness limitations. The VA must return VA examination reports that lack adequate detail. 38 C.F.R. § 4.2. Therefore, the Board finds this internal inconsistency must be resolved. Accordingly, the case is REMANDED for the following action: 1. Request that the examiner who conducted the February 2009 VA psychiatric examination review the claims file, to include the Veteran's February 2009 Gulf War examination, and provide an addendum to his previous report. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent) or unlikely (i.e., a probability of less than 50 percent) that any current psychiatric disability, to include PTSD and depression, is related to the Veteran's military service, to include the Veteran's report of being involved in multiple chemical alarms in service. If the February 2009 VA examiner is no longer available, a physician knowledgeable in evaluating psychiatric disorders should be requested to provide the requested opinion. 2. Request that the examiner who conducted the January 2008 orthopaedic examination provide a clarification of the examination to reconcile the conflicting statements that the Veteran experiences "PAIN WEAKNESS or FATIGABILITY at rest, standing or walking" but that "[r]epeated moves did not reveal PAIN FATIGUE WEAKNESS limitations or other Deluca factors." 3.Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ JOHN J. CROWLEY 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).