Citation Nr: 1311971 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 05-38 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, including depression and anxiety, to include secondary to cervical and lumbar degenerative disc disease. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The case was remanded for further development in July 2008, July 2009, and June 2010. In October 2011, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court granted a joint motion for remand. The Board remanded the case for further development in December 2012. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the Virtual VA file does not reflect any additional records pertinent to the claim remaining on appeal. The issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 this case, the Veteran asserts that his current psychiatric disorder is secondary to his service-connected cervical and lumbar degenerative disc disease. A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). In December 2012, the Board remanded the claim, in part, to obtain a VA medical opinion as to whether the Veteran's psychiatric disorder was caused or aggravated (i.e., permanently worsened) by his service-connected cervical and lumbar spine degenerative disc disease. In February 2013, the November 2010 VA examiner provided a supplemental report that addressed in great detail whether the Veteran's depression and anxiety were proximately caused by his service-connected spine disabilities. Unfortunately, the examiner did not address the question of aggravation. Indeed, the section addressing aggravation of a nonservice-connected condition by a service-connected condition (Section 6) was left blank on the Disability Benefits Questionnaire. The Veteran is entitled to substantial compliance with the Board's December 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the February 2013 supplemental report did not address all of the Board's remand instructions and, as a result, this case must again be remanded. Finally, the Board notes that the Veteran's claims folders do not currently include any document appointing a representative. If the appellant desires to be represented by a Veterans Service Organization or by private counsel he must sign and submit the appropriate form. Accordingly, the case is REMANDED for the following action: 1. The claims folders must be returned to the examiner who conducted the November 2010 study and provided the February 2013 supplemental report. Following that examiner's review of his prior reports, the claims folders, Virtual VA and a copy of this remand, the examiner must opine "whether it is at least as likely as not," i.e., is there a 50/50 chance, that any diagnosed psychiatric disorder is aggravated (i.e., permanently worsened) by the appellant's cervical and lumbar degenerative disc disease with lumbar spondylosis. The examiner must use the standard quoted above. If a Disability Benefits Questionnaire is used, the examiner must complete the section of that form that addresses aggravation. A complete rationale for any opinion offered must be provided. The examiner must identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he relied upon in reaching any conclusions. If the examiner is unable to provide a definitive opinion on the question presented that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examining doctor must specifically explain why the relationship between any currently diagnosed psychiatric disorder and the appellant's cervical and lumbar disorders is unknowable. 2. In the event that the November 2010 examiner is not available, the RO/AMC must schedule the Veteran for a joint examination by a VA psychiatrist and a VA psychologist. Following that examination and review of the claims folders, Virtual VA and a copy of this remand, the examiners must jointly opine "whether it is at least as likely as not," i.e., is there a 50/50 chance that any diagnosed psychiatric disorder is caused or permanently aggravated by the appellant's cervical and lumbar degenerative disc disease with lumbar spondylosis. The examiners must use the standard quoted above. If a Disability Benefits Questionnaire is used, the examiners must complete the section of that form addressing aggravation. A complete rationale for any opinion offered must be provided. The examiners must identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he relied upon in reaching any conclusions. If the examiners are unable to provide a definitive opinion on the question presented that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiners must specifically explain why the relationship between any currently diagnosed psychiatric disorder and the appellant's cervical and lumbar disorders is unknowable. 3. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO/AMC should review any examination reports to ensure that they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. Upon completion of the above development, and any additional development deemed appropriate, the RO/AMC must readjudicate the issue on appeal. All applicable laws and regulations must be considered. If the benefit sought on appeal remains denied, the appellant and any representative must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 6. If the appellant desires representation he must complete and sign the appropriate VA form appointing the representative of his choosing. 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 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). _________________________________________________ DEREK R. BROWN 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).