Citation Nr: 1318545 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-10 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from November 1994 to December 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This case was previously before the Board in October 2007, July 2010, and May 2012, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include, specifically, posttraumatic stress disorder. In pertinent part, it is contended that the Veteran's current posttraumatic stress disorder is the result of an incident in service, at which time she was sexually assaulted. At the time of the Board's in July 2010 remand, it was noted that, while the Veteran's appeal was originally confined exclusively to the issue of entitlement to service connection for posttraumatic stress disorder, pursuant to the holding of the United States Court of Appeals for Veterans Claims in Clemons v. Shinseki, 23 Vet. App. 1 (2009), that appeal was being expanded to include entitlement to service connection for any other acquired psychiatric disorder, as well as posttraumatic stress disorder. The July 2010 remand also noted that, while following a VA psychiatric examination in April 2010, the examiner indicated that the Veteran's psychiatric symptomatology did not meet the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV) criteria for posttraumatic stress disorder, he nonetheless provided an alternative diagnosis of "depressive disorder, not otherwise specified." As noted by the Board in July 2010, the examiner provided no opinion regarding the relative probability of a relationship between the Veteran's depressive disorder and her period of active military service. In an attempt to remedy this problem, the Board, in the July 2010 remand, requested that the examiner who had conducted the April 2010 examination provide an addendum opinion regarding whether any current acquired psychiatric disorder (other than posttraumatic stress disorder) was in any way related to the Veteran's period of active military service. In August 2010, the same VA psychologist who had conducted the April 2010 examination provided the requested addendum opinion. However, that opinion failed to address in any way the depressive disorder, not otherwise specified, identified at the time of the April 2010 VA examination. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Moreover, a remand by the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand, either personally, or as head of the Department. See Stegall v. West, 18 Vet. App. 268, 271 (1998). Under the circumstances, an additional attempt will be made to obtain an opinion regarding whether the Veteran currently suffers from an acquired psychiatric disorder (other than posttraumatic stress disorder) which had its origin during, or is in some way the result of, her period of active military service. Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, dating since August 2010, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and her representative should be informed of any such problem. 2. The Veteran's entire claims folder to include access to his Virtual VA eFile must be furnished to the same VA examiner who conducted the April 2010 VA examination and provided the August 2010 addendum opinion. If that examiner is not available the claims file and access to the Virtual VA eFile must be provided to another equally qualified examiner. Following a review of the Veteran's entire claims file and Virtual VA, an additional addendum opinion must be provided regarding whether the appellant currently suffers from any acquired psychiatric disorder (to include a depressive disorder, but excluding posttraumatic stress disorder) which at least as likely as not had its origin during service, to include an alleged inservice sexual assault. If the examiner does diagnose an acquired disorder based on the alleged sexual assault, the examiner must identify what evidence independently verifies the allegation. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the aforementioned addendum report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. Should the benefit sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claim for benefits since September 2011. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ 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).