Citation Nr: 1332031 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-13 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from December 1960 to December 1964 in the United States Navy. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2011, the Veteran and his spouse presented testimony at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the claims folder. The Board remanded this case in September 2011, February 2013, and June 2013 for additional development. The case has been returned to the Board for further appellate consideration. In the February 2013 Board decision, the Board adjudicated the issue of service connection for PTSD, which was previously on appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (noting that bifurcation of a claim generally is within VA's discretion). Thus, this issue is no longer on appeal before the Board. A review of the Virtual VA paperless claims processing system reveals additional VA psychiatric treatment records dated in 2011, which are pertinent to the present appeal. Upon remand, the RO will have the opportunity to review these records prior to readjudicating the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to ensure compliance with the Board's previous February 2013 remand directives. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). First, the RO must obtain a VA addendum opinion from the April 2013 VA psychological examiner. This VA examiner provided VA opinions in April 2013 and August 2013, but neither are fully adequate. Specifically, the VA examiner failed to directly answer the etiology question as posed for the acquired psychiatric disorder issue on appeal. The VA examiner was asked to opine whether the Veteran's service-connected disabilities, (i.e., his tinnitus, bilateral hearing loss, hemorrhoids, fecal leakage, and head laceration scar), considered in combination, caused or aggravated any acquired psychiatric disorder other than PTSD. In both the April 2013 VA examination report and August 2013 VA addendum opinion, the VA psychological examiner's response did not answer the secondary service connection etiology question. Although the VA examiner adequately addressed service connection on a direct basis, the VA examiner failed to address the theory of secondary service connection for an acquired psychiatric disorder. Additionally, the VA examiner provided an opinion regarding direct service connection that indicated that the Veteran's non-PTSD psychiatric disorder may have pre-existed service. The Board notes that the Veteran is presumed sound at service entrance. See 38 U.S.C.A. §§ 1111 (West 2010); 38 C.F.R. § 3.304(b) (2012). Overall, the VA examiner's opinions were not adequate. Therefore, the claims folder will be returned for an addendum opinion. If the same VA psychological examiner is not available, another qualified VA clinician will provide the addendum opinion. Second, concerning VCAA notice, the VCCA notice letters of record failed to discuss secondary service connection for an acquired psychiatric disorder on the premise that this disability is proximately due to or chronically aggravated by the combination of the Veteran's service-connected tinnitus, bilateral hearing loss, hemorrhoids, fecal leakage, and head laceration scar disabilities. See 38 C.F.R. § 3.310 (2013). The Board's previous February 2013 remand raised this contention. Therefore, a remand is required for a letter that notifies the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the issue of secondary service connection for an acquired psychiatric disorder. The notice must also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the case is REMANDED for the following action: 1. Send a notice letter to the Veteran notifying him of any information or lay or medical evidence not previously provided that is necessary to substantiate the theory of secondary service connection for an acquired psychiatric disorder. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 2. Secure a VA addendum opinion from the April 2013 VA psychological examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion. Only if deemed necessary by the VA examiner is an examination necessary. Access to the paper and electronic claims file must be made available to the examiner for review. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner must provide the following addendum medical opinions: 1) Is it at least as likely as not (i.e., 50 percent or more probable) the Veteran's service-connected disabilities, (i.e., his tinnitus, bilateral hearing loss, hemorrhoids, fecal leakage, and head laceration scar), considered in combination, caused or aggravated any acquired psychiatric disorder other than PTSD?; and 2) Is it at least as likely as not (i.e., 50 percent or more probable) the Veteran's non-PTSD psychiatric disorder is caused by or the result of active service, taking into account that the Veteran is presumed sound upon service entrance? 3. Review the claims file 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. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, the consider all of the evidence of record and readjudicate the service connection issue for an acquired psychiatric disorder on both a direct and secondary basis. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. 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). 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). _________________________________________________ K. MILLIKAN 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).