Citation Nr: 1336907 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-13 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a psychiatric disorder, to include a panic disorder with agoraphobia. REPRESENTATION Appellant represented by: Harold H. Hoffman-Logsdon, III, Veterans Legal Advocacy Group ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1975 to September 1978. This appeal arose before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO). In a June 2010 decision, the Board denied the claim on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In January 2011, the Veteran and the Secretary of VA (parties) filed a joint motion to vacate the part of the Board's decision that had denied service connection for a panic disorder with agoraphobia. That same month, CAVC granted the joint motion and the case was returned to the Board for further appellate review. In July 2011, the Board remanded the claim to the RO for additional evidentiary development. After obtaining additional records and conducting a VA examination, the RO issued a supplemental statement of the case (SSOC) that confirmed the denial of the claim. In September 2011, the appellant submitted a death certificate that indicated that the Veteran had died from blunt force trauma following an accident on September 9, 2011. In April 2012, she submitted a VA Form 21-534, Application for Dependency and Compensation, Death Pension and Accrued Benefits by a Surviving Spouse. She also submitted documentation that the state of Rhode Island had recognized her as the Veteran's common-law wife. She was then asked to clarify what benefit she was seeking and, later in April 2012, she stated that she was seeking a death pension. An Administrative Decision was issued by the RO in August 2013 that found that the appellant was to be recognized as the Veteran's surviving spouse. The state of Rhode Island had already determined that there was valid common-law marriage between the Veteran and the appellant; no other action by VA was necessary. Because the appellant is the Veteran's surviving spouse and because she had filed a VA Form 21-534 within one year of the date of the Veteran's death, she was substituted as the claimant for the purpose of processing the claim for service connection for a panic disorder with agoraphobia to completion. See Section 212 of the Veterans' Benefits Improvement Act of 2008, Public Law 110-389 (VBIA2008), codified as 38 U.S.C.A. § 5121A. The issue of entitlement to death pension benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 After reviewing the evidence of record, the Board concluded that further remand is necessary. While any further delay is regrettable, it is necessary in order to ensure that the Board has a full and complete record before it prior to any final adjudication of the claim. The Veteran's claim was previously remanded by the Board in July 2011. The RO was to obtain additional VA records and afford the Veteran an examination in order to ascertain whether his claimed panic disorder with agoraphobia could be etiologically related to a left eye injury with sutures that he sustained while in service. The instructions for the examination were very detailed and explicit. Specifically, the RO/AMC was instructed that the psychiatric examination was to be performed by a psychiatrist, who was to attach their curriculum vitae (CV) to the examination report. No CV was appended to the examination report. However, more egregiously, the examination was not conducted by a psychiatrist, but by a psychologist. Clearly, the instructions of the Board were not complied with in direct violation of Stegall v. West, 11 Vet. App. 268 (1998) (a remand by...the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Unfortunately, the Veteran is now deceased. Despite this, the Board finds that an attempt must be made to obtain a forensic opinion that complies with the prior remand. This is particularly so here given the internal inconsistency of the opinion provided by the psychologist. While stating that it "is not at least as likely as not" that the eye injury caused the Veteran's psychiatric disorder, the examiner went on to state that it was "unlikely, yet conceivable...." (Emphasis added) that the stressor of the injury caused the anxiety related symptoms. This inconsistency must be resolved before a final determination of the appellant's claim can be made. Accordingly, the case is REMANDED for the following action: 1. Refer the claims folder to a VA psychiatrist for a complete review of the record and for a forensic opinion as to whether any psychiatric disorder, to include a panic disorder with agoraphobia, was the result of some aspect of the Veteran's service. The examiner must render an opinion as to whether it is at least as likely as not (a 50/50 degree of probability) that any diagnosed psychiatric disorder, to include a panic disorder with agoraphobia, was caused by a left eye injury that necessitated the Veteran's receipt of stitches in January 1976. In preparing the opinion, the examiner must note the following terms: * "it is due to" means 100 percent assurance of relationship * "it is at least as likely as not" means 50 percent or more * "it is not at least as likely as not" means less than a 50 percent chance * "it is not due to" means 100 percent assurance of a non-relationship The examiner must provide a complete rationale for any opinion proffered. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. The RO must ensure that the opinion provided is in full compliance with the remand directives. If the report is deficient in any way, corrective procedures must be implemented. 2. Once the above-requested development has been completed, readjudicate the claim for entitlement to service connection for a panic disorder with agoraphobia. If the decision remains adverse to the appellant, she and her representative must be provided with a SSOC and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).