Citation Nr: 1318679 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-47 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a respiratory disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a left hand disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from May 1997 to October 1997, from November 1998 to November 2001, and from June 2004 to November 2005. He served in the Southwest Asia theater of operations from January 29, 2005, to October 22, 2005. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey (RO). This case was remanded by the Board in August 2012 for additional development. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Unfortunately, additional development is once again required prior to the disposition of the Veteran's claims. In August 2012 the claims on appeal were remanded, in part, so that medical opinions could be obtained to determine the etiology of any psychiatric, respiratory, and left hand disorders or symptomatology found. With respect to the Veteran's psychiatric disorder claim, he was provided with a VA medical examination and opinion in January 2013. The examination report gave Axis I diagnoses of major depressive disorder, recurrent and moderate; polysubstance abuse in remission; and attention deficit hyperactivity disorder (ADHD). The examiner stated that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria and opined that the Veteran's psychiatric disorder was less likely than not incurred in or caused by military service. However, the examiner also stated that it was suspected that the Veteran's ADHD began in childhood, and that his substance abuse "pre-existed trauma exposure and continued until his Article 15 in Germany." These statements constitute evidence that the Veteran's ADHD and polysubstance abuse preexisted military service. However, the examiner did not provide an opinion as to whether any psychiatric disorder clearly and unmistakably preexisted service and was aggravated beyond its natural progression by service. Accordingly, a new medical opinion is required to address this issue. In addition, the January 2013 report stated that the Veteran's first feelings of depression began after he was arrested for assaulting a German police officer. The Veteran's service treatment records demonstrate that he served in Germany during his second period of active service, from November 1998 to November 2001. In addition, an April 2004 Consular Report of Birth Abroad states that the Veteran's daughter was born in Germany in February 2004. The evidence of record states that the Veteran was not in active service in February 2004 or the nine months preceding that date. Accordingly, there is evidence of record that the Veteran was in Germany during a period of active service as well as a period when he was not in active service. The evidence of record does not provide any information as to whether the Veteran's arrest for assaulting a German police officer, and thus his first depressive symptoms, occurred while he was on active duty. There is no evidence of record that an attempt has been made to obtain the Veteran's service personnel records. As these records may demonstrate whether the incident in question occurred during active service, an attempt must be made to obtain them. 38 C.F.R. § 3.159(c) (2012). With respect to the Veteran's respiratory disorder claim, he was provided with a VA medical opinion in February 2013 The examiner opined that the Veteran's mild obstructive lung disease was less likely than not related to military service or any exposures therein, due to a lack of evidence of any complaints or training. However, the examiner then stated that the Veteran's complaint of ongoing cough and congestion was at least as likely as not related to his allergic rhinitis. In this regard, the Board notes that the respiratory disorder claim was originally claimed as an upper respiratory illness and has been specifically reported to be manifested by a chronic cough and congestion. As such, the claim on appeal specifically covers the symptoms that the examiner opined were related to allergic rhinitis. Unfortunately, the examiner only provided an etiological opinion with respect to the Veteran's lung disorder and the examiner did not comment at all on whether the Veteran's allergic rhinitis was related to military service. As a result, the examiner failed to provide the information that was specifically required by the Board's August 2012 remand. With respect to the Veteran's left hand disorder claim, he was provided with a VA medical opinion in February 2013. However, the examiner only commented on the Veteran's right hand symptoms and diagnoses and provided no information whatsoever on whether the Veteran had ever had a left hand disorder or symptomatology, let alone the etiology of any such disorder or symptomatology. As a result, the examiner failed to provide the information that was specifically required by the Board's August 2012 remand. If VA provides the Veteran with an examination, the examination must be adequate. 38 C.F.R. § 3.159(c)(4) (2011); Barr v. Nicholson, 21 Vet. App. 303 (2007). RO compliance with a remand is not discretionary, and if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Contact the National Personnel Records Center, or any other appropriate service department office, and obtain complete copies of the Veteran's service personnel records for all of his periods of service. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2), must be entered in the record if it is determined that any of the above records or information do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records or information are unavailable, provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(c), and give him an opportunity to respond. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any psychiatric disability found. The examiner must review the claims file and the examination report must note that review. In addition to the service medical records, the examiner should consider the Veteran's statements regarding the history of his symptoms. A complete rationale for all opinions must be provided. The examiner must provide an opinion. The examiner should specifically opine as to whether there is clear and unmistakable evidence that any currently diagnosed psychiatric disability, to specifically include ADHD and polysubstance abuse, pre-existed any period of active military service. If a psychiatric disability is found to clearly and unmistakably have preexisted any period of active military service, the examiner must state whether it was permanently aggravated beyond its natural progression by any subsequent period of active military service. If any psychiatric disability currently diagnosed is found not to have clearly and unmistakably preexisted any period of active military service, the examiner must state whether it is as likely as not (50 percent probability or greater) that the currently diagnosed psychiatric disability is related to the Veteran's active military service. If any psychiatric disability found is attributable to factors unrelated to his military service, the examiner should specifically so state. A complete rationale for all opinions must be provided. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any respiratory disability found. The examiner must review the claims file and the examination report must note that review. In addition to the service medical records, the examiner should consider the Veteran's statements regarding the history of his symptoms. A complete rationale for all opinions must be provided. The examiner must provide an opinion as to whether any respiratory symptoms found, to specifically include chronic congestion and cough, are associated with a specific known medical diagnosis, or whether they are symptoms of an undiagnosed illness. The examiner should also specifically opine as to whether it as at least as likely as not (50 percent probability or greater) that any currently diagnosed respiratory disability, to specifically include allergic rhinitis, is related to the Veteran's active service. If any respiratory disability is attributable to factors unrelated to his service, the examiner should specifically so state. 4. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any left hand disability found. The examiner must review the claims file and the examination report must note that review. In addition to the service medical records, the examiner should consider the Veteran's statements regarding the history of his symptoms. A complete rationale for all opinions must be provided. The examiner must provide an opinion as to whether any left hand symptoms found, either currently or previously, are or were associated with a specific known medical diagnosis, or whether they are or were symptoms of an undiagnosed illness. The examiner should also specifically opine as to whether it as at least as likely as not (50 percent probability or greater) that any currently or previously diagnosed left hand disability is or was related to the Veteran's active service. If any left hand disability is or was attributable to factors unrelated to his service, the examiner should specifically so state. 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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). These claims 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). _________________________________________________ F. JUDGE FLOWERS 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).