Citation Nr: 1315527 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 00-11 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. REPRESENTATION Appellant represented by: Chisholm Chisholm & Kilpatrick LTD ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to October 1973. Procedural history This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 1999 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously before the Board in December 2004, June 2007 and July 2010. In May 2011, the Board denied the Veteran's claim for service connection for an acquired psychiatric disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). By way of a September 2012 Memorandum Decision, the Court vacated the Board's May 6, 2011 decision and remanded the Veteran's acquired psychiatric disorder claim for readjudication. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination. 38 U.S.C.A. § 5103A; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). An examination is adequate "where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl, 21 Vet. App. at 123 (quoting Ardison v. Brown, 6 Vet. App. 45, 407-08 (1994)); Green, supra. It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet. App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Pursuant to the September 2012 Memorandum Decision, the Court found the May 2006 VA opinion to be inadequate. The Court explained that the examiner failed to provide a reasoned medical opinion regarding her conclusions. Specifically, the examiner failed to explain how she accepted a diagnosis of depression in 1989 as more likely than not to be the onset of a current diagnosis of bipolar disorder without explaining why the depression, in service, after a sledding accident could not be the likely cause of the bipolar disorder. The examiner also did not explain why the Veteran's presentation after his sledding accident and injury to his face was "situational in nature" when that "presentation" included depression and "bad nerves" in February 1972 and depression at separation in October 1973. The Veteran reported using drugs in service because he was depressed and in pain after his accident. The examiner did not explain why the in-service depression was more likely a substance-induced mood disorder when there was no evidence of drug abuse in-service prior to the accident. The examiner did not mention the March 2006 examination report, which concluded that the Veteran's bipolar disorder had its onset in service. Furthermore, the May 2006 VA opinion was not provided by a Board of two psychiatric specialists per the RO's specific direction. Pursuant to this Memorandum Decision, the Board finds that a new VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran. 2. Ask the Veteran to submit any relevant private treatment records or an authorization form that would allow VA to request the records on his behalf. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Send the Veteran a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should indicate what evidence is required to substantiate a claim for service connection as secondary to the Veteran's service-connected deviated septum. 4. After the above steps are complete, schedule the Veteran for a VA psychiatric examination. Two psychiatric specialists should review the report resulting from this examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The examiner should answer the following questions: a. Does the Veteran have a current psychiatric disorder? b. Please provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed psychiatric disorder had its onset in, or is otherwise related to the Veteran's active duty service. Specifically, the examiner should comment on the Veteran's assertions that he became depressed after his sledding accident in service. c. Please provide an opinion as to whether it is at least as likely as not that any diagnosed psychiatric disorder is related to, was caused by, or is aggravated by the Veteran's service-connected disabilities. Please name which, if any, service-connected disability aggravates the Veteran's psychiatric disorder. Specifically, the examiner should comment on whether the Veteran's deviated nasal symptom injury aggravated the Veteran's psychiatric disability. The Veteran's service-connected disabilities include: deviated nasal septum and hemorrhoids. Please explain the reasons behind any conclusions reached. The term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The report should be reviewed by two psychiatric specialists. 5. After the requested examination has been completed, review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if it is deficient in any manner. 6. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his attorney should be provided a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE 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).