Citation Nr: 1330299 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 06-07 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a psychiatric disorder, including major depressive disorder and posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1977 to November 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2005 and January 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. This case was previously brought before the Board in March 2009, October 2010, and September 2012 at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. 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, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran has consistently claimed that his psychiatric disorder is related to service or to his service-connected disabilities. See e.g., September 2004 and December 2006 statements. The Veteran is service-connected for migraines, renal insufficiency, hypertension, a left foot disability, a lumbar spine disability, sinusitis, a left knee disability, and hemorrhoids. The Veteran is also receiving a total disability rating due to individual unemployability as of July 17, 2007. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In a December 2005 VA examination the examiner could not determine the etiology of the Veteran's depression. At his April 2011 VA examination the Veteran did not meet the criteria for PTSD and the examiner did not relate depression to service as the Veteran was not treated for depression in service. In a January 2012 addendum opinion the examiner stated there was no indication the Veteran's depressive symptoms were related to his service-connected disorders. He offered no opinion as to aggravation. The Court of Appeals for Veterans Claims has held that once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Accordingly, the Veteran should be afforded a new VA examination to determine if his psychiatric disorder was aggravated by his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination by a psychologist or psychiatrist. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. (a) The examiner must provide an opinion as to whether the Veteran meets the DSM-IV criteria for any current psychiatric disorder, to include major depressive disorder and PTSD. (b) The examiner must provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current psychiatric disorder had its clinical onset during active service. See e.g., August 1997 separation medical examination noting trouble sleeping, depression, and memory loss. (c) The examiner must also provide an opinion as to whether it is at least as likely as not that any of the Veteran's service-connected disabilities, acting alone or together, i) caused the Veteran's psychiatric disorder OR ii) permanently worsened (aggravated) any current psychiatric disorder. The examiner should note that the Veteran is service-connected for migraines, renal insufficiency, hypertension, a left foot disability, a lumbar spine disability, sinusitis, a left knee disability, and hemorrhoids. The Veteran is also receiving a total disability rating due to individual unemployability as of July 17, 2007. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 2. Ensure the opinion is responsive to this determinative issue of causation or provides sufficient explanation as to why it cannot be. If it is not, take any needed corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2. 3. After completing the above, and any other development deemed necessary, readjudicate the claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ CHRISTOPHER MURRAY 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).