Citation Nr: 1323761 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-08 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1974, January 15, 1976 to November 1, 1976, and November 2, 1996 to July 24, 1997. He had additional service with the Indiana National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In an October 2012 decision, the Board remanded this issue for additional development. The Board notes that in a May 2013 rating decision, the RO denied service connection for schizotypal personality as secondary to service-connected diabetes mellitus. In a June 2013 correspondence, the Veteran's representative noted that the Veteran had appealed a decision rendered in April 2007. However, while making no specific mention regarding the adverse May 2013 rating decision, the representative also noted that the Veteran contended that his current mental health condition was related to his service-connected diabetes. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the Veteran appears to be disagreeing with adverse decisions that address both his depression claim and his schizotypal personality claim , this issue on appeal has been characterized to consider all reported and diagnosed psychiatric disabilities in accordance with Clemons. 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 Unfortunately, an additional remand of the Veteran's claim for service connection for an acquired psychiatric condition is warranted. Although the Board regrets the additional delay associated with an additional remand, further development of the record is required before the Board may render a decision in the instant case. When the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2011, the Board remanded the Veteran's claim in order to provide him with an additional psychiatric examination in order to request a clarification of the opinion provided on a May 2010 VA examination, and also an opinion as to whether any diagnosed personality disorder was subject to any superimposed disease or injury. The Board's remand also specifically asked the examiner to consider the September 1976 Medical Board Report indicating that the Veteran was treated for "war neurosis" for four weeks. The Veteran received an additional examination in January 2012, and the examiner diagnosed the Veteran with dementia NOS, personality disorder (by history), and alcohol dependence in remission. In its October 2012 remand, the Board noted that the January 2012 VA examiner did not consider the Veteran's in-service treatment for war neurosis and the requested opinion in regards to the relationship between the Veteran's acquired psychiatric condition and active duty military service, was not provided. Accordingly, on remand in October 2012, the Board determined that a supplemental opinion was required. The Board specifically requested a supplemental opinion from the examiner who conducted the January 2012 examination and if this examiner was not available, then an opinion from an examiner of appropriate expertise, with the option for an additional examination. The Veteran was scheduled for a VA examination in November 2012, but failed to report for his examination. Although a reason for his failure to report was not provided at the time, subsequent correspondence from the RO noted that the Veteran was living at the Marian, Indiana VA Medical Center (VAMC) where he had been admitted for long stay dementia care. Additionally, the Board notes that the October 2012 Board remand specifically noted that if the January 2012 examiner was not available, then an opinion was to be provided from an examiner of appropriate expertise, with the option for an additional examination. While a VA examination was scheduled which the Veteran failed to report for, a requested opinion by an examiner of appropriate expertise was not provided. Per the October 2012 Board remand instructions, an actual examination was only an option available to the examiner if deemed necessary. Accordingly, and considering the nature and circumstances of the Veteran's long stay care for dementia at the VAMC, the Board finds that another remand is necessary to obtain a new medical opinion based on a review of the claims file to specifically consider the Veteran's in-service treatment for war neurosis and the requested opinion in regards to the relationship between the Veteran's acquired psychiatric condition and active duty military service. See Stegall, supra. Additionally, and in light of Clemons, an opinion should be rendered which addresses whether or not the Veteran has a psychiatric disability that was caused by or aggravated by his service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. Request a supplemental opinion from the examiner who conducted the January 2012 examination. If this examiner is not available, then request an opinion from an examiner of appropriate expertise. In either event, the claims folder, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in the examination report that the claims folder was reviewed. The examiner should then address the following questions: a) Identify with specificity any acquired psychiatric disorder or personality disorder that has been manifested at any time since 2006 (the current appeal period). b) Is it at least as likely as not (that is, a 50 percent or greater probability) that any such acquired psychiatric disorder is causally or etiologically related to the Veteran's active service? c) Was any identified personality disorder subject to any superimposed disease or injury in service, or was such personality disorder otherwise permanently aggravated during military service? These opinions should explicitly consider the Veteran's service treatment records, including the reference to treatment for "war neurosis" for four weeks, as described in the September 1976 Medical Board Report. d) Is it at least as likely as not (i.e. 50 percent or greater probability) that any identified psychiatric disability that is caused by or aggravated by his service-connected diabetes mellitus disability. If the examiner finds that the Veteran's psychiatric disability has been worsened by his service-connected diabetes mellitus disability, to the extent feasible, the degree of worsening should be identified. A complete rationale for any opinions proffered should be provided. If the examiner is unable to provide any requested opinion, he or she should fully explain why such opinion could not be rendered. 2. Then, after ensuring any other necessary development has been completed, adjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). _________________________________________________ MICHAEL LANE 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).