Citation Nr: 1328783 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-03 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression, including as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to September 1972. The appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in pertinent part, denied entitlement to service connection for PTSD and depression. The Veteran requested a hearing before the Board in his January 2010 VA Form 9. The RO informed the Veteran that his requested hearing had been scheduled for October 2012. See September 2012 letter. The Veteran, however, failed to report for the scheduled hearing. As the record does not indicate the Veteran has requested that the hearing be rescheduled, the Board deems the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704 (2012). The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The Board remanded this claim in December 2012 and May 2013 for further development of the evidence. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board remanded the claim in May 2013 in order to obtain an addendum opinion from the VA examiner who conducted the June 2012 and January 2013 Disability Benefits Questionnaires (DBQs). In pertinent part, the examiner was to address the question about aggravation of a non-service-connected condition (in this case depression) by a service-connected condition (in this case diabetes mellitus). This was not accomplished in the June 2013 addendum provided by the VA examiner who conducted the previous DBQs, although the examiner did provide an opinion, as requested, regarding whether there is a causal relationship between depression and diabetes. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In light of the foregoing, another addendum must be obtained from this VA examiner that addresses the question of aggravation. Recent VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Richmond VA Medical Center, dated since May 2013. 2. Obtain an addendum from the VA examiner who completed the June 2012 and January 2013 DBQs and the June 2013 addendum. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected diabetes mellitus aggravated (i.e., caused an increase in severity of) the diagnosed depressive disorder, not otherwise specified. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of psychiatric impairment (i.e., a baseline) before the onset of the aggravation. The examiner must provide a comprehensive report, including complete rationale for all opinions and conclusions reached. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter 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 or by the U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).