Citation Nr: 1337759 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-25 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression. 2. Entitlement to an initial compensable rating for scars on the forehead and scalp. ATTORNEY FOR THE BOARD G. R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1960 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for depression and granted service connection for scars with a non-compensable rating. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran's claim of service connection for depression has been recharacterized as including anxiety and depression. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the veteran's description of the claim, reported symptoms, and/or other information of record). The issue of service connection for acquired psychiatric disorder to include anxiety and depression, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's scars on his forehead and scalp are 5 centimeters or less in length, 3 millimeters or less in width, linear, nontender and nonadherent, and no more than mildly hyperpigmented. CONCLUSION OF LAW The criteria for an initial compensable rating for scars have not been met at any time during the pendency of this appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.118, Diagnostic Codes 7800 and 7804 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law, which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the veteran to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), provides that VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has held that VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should generally be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, a delay in timing is "cured" and therefore harmless when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through the issuance of an SOC or SSOC) after the veteran has had an opportunity to submit additional evidence. See Mayfield. The appeal of the non-compensable rating assigned to the Veteran's scars stems from a granted claim of service connection. In initial rating cases, where service connection has been granted and an initial disability rating and effective date assigned, VCAA notice under 38 U.S.C.A. § 5103(a) is no longer required because the purpose that the notice is intended to serve has been fulfilled with the grant of service connection. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). A November 2009 letter informed the Veteran of the elements of service connection, including VA's general criteria for assigning a disability rating, and also notified him of his and VA's respective responsibilities for obtaining relevant evidence in support of his claim. The claim was granted in April 2010, and further notice is not required. See id.; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping veterans to obtain service treatment records and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and private medical records are in the claims file. He has not identified any other outstanding records or evidence. Thus, the duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist under the VCAA also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An appropriate VA examination of the Veteran's scars was performed in March 2010. The examination report is adequate for rating purposes because the examiner considered the Veteran's self-reported medical history, performed an examination, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The VA examiner indicated that the Veteran's claims file was not available for review. However, when an increased rating is at issue, the present level of the Veteran's disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The examiner examined the Veteran, recorded all pertinent clinical findings, and considered his relevant medical history. There is no indication that a review of the Veteran's claims file would alter the examiner's findings or the adequacy of findings. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (noting that review of a claims file is not required when such a review would not change objective findings made on examination). The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his scarring since he was last examined in March 2010. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95 (April 7, 1995). Thus, VA's duty to obtain a VA examination in relation to the Veteran's scarring has been met. 38 C.F.R. § 3.159(c)(4) (2013); Barr, 21 Vet. App. at 312. Accordingly, the Board may proceed with appellate review. II. Analysis The Veteran contends that he is entitled to a compensable disability rating for his service-connected scars. The preponderance of the evidence is against the claim, and the appeal will be denied. The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must assess the credibility and weight of all evidence, including both lay and medical evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See, e.g. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. With regard to the competency of the evidence, lay statements submitted by or on behalf of a veteran can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Thus, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See id. (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the veteran's testimony on this issue as not competent merely because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. Barr, 21 Vet. App. at 309; see also Jandreau, 492 F. 3d at 1376-77 (observing that a lay person is not competent to identify more complex conditions such as a form of cancer). The Board must discount the probative value of lay evidence if it finds such evidence not to be competent in light of the above guidelines. See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (noting that lay evidence must "demonstrate some competence") (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted)); see also Layno, 6 Vet. App. at 469 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to that fact, and that incompetent testimony must be excluded from consideration). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1); see also Layno, 6 Vet. App. at 469. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. 38 C.F.R. § 3.159(a)(1). It also includes statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence. See Layno, 6 Vet. App. at 469 (observing that the credibility and weight of testimony are factual determinations that must be distinguished from the initial assessment of its competency); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2013). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2013). Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2013). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. In initial rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). The RO rated the Veteran's scars under Diagnostic Code (DC) 7804, which pertains to unstable or painful scars. See 38 C.F.R. § 4.118. DC 7804 sets forth the following rating criteria: A 30 percent rating is assigned for five or more scars that are unstable or painful. A 20 percent rating is assigned for three to four scars that are unstable or painful. A 10 percent rating is assigned for one or two scars that are unstable or painful. Id. According to DC 7804 Note (1), an "unstable" scar is a scar "where, for any reason, there is frequent loss of covering of skin over the scar." Id. The March 2010 VA examination report states that the scar on the back of the Veteran's head is 5 centimeters long, 2 millimeters wide, and mildly hyperpigmented. The report describes the two scars on the Veteran's forehead as 3 centimeters long, 3 millimeters wide, and having normal texture and pigmentation. On examination, all three of the Veteran's scars were nontender and nonadherent, not depressed or elevated, superficial with no inflammation or keloid, and not indurated or flexible. In addition, the scars showed no evidence of ulceration, caused no limitation of motion or function, and did not result in facial distortion. During the examination, the Veteran reported that his scars were not painful and that he had no problems with ulceration. None of the Veteran's scars satisfy the criteria for a compensable rating under DC 7804. The March 2010 VA examination report did not associate instability or frequent loss of skin cover with any of the Veteran's three scars and the Veteran denied having pain associated with his scars. A compensable rating is not warranted under DC 7804. Id. The Veteran's scars may also be rated under DC 7800, which applies to "scar(s) of the head, face, or neck due to other [non-burn related] causes." Id. Rating the Veteran's scars under DC 7800 is warranted because the Veteran's scars resulted from causes other than burns and appear on the back of his head and on his forehead. DC 7800 sets forth the following rating criteria: An 80 percent rating is assigned for scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. A 50 percent rating is assigned for scars with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A 30 percent rating is assigned for scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 10 percent rating is assigned for scars with at least one of the eight characteristics of disfigurement. Id. Under DC 7800, the eight characteristics of disfigurement are as follows: Scar 5 or more inches (13 or more centimeters) in length. Scar at least one-quarter inch (0.6 centimeters) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters). Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters). Skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Id. Note (1). None of the Veteran's scars exhibit any of the eight characteristics of disfigurement required for a compensable rating under DC 7800. The March 2010 VA examination report describes all three scars as less than 13 centimeters long and 6 millimeters wide and states that the scars were neither elevated nor depressed on examination. The report also states that the scars on the Veteran's forehead were normal in texture and pigmentation and that the scar on the back of his head was only mildly hyperpigmented and caused no distortion in the face. The report does not indicate adherence to or missing underlying tissue, abnormal skin texture, and/or that the skin is indurated and inflexible around any of the Veteran's three scars. The Veteran's three scars do not satisfy the criteria for a compensable rating under DC 7800. DC 7805 provides that scars can be rated on disabling effects not considered in DCs 7800 to 7804. See 38 C.F.R. § 4.118. The Veteran has not described, and the evidence does not otherwise show, that his scars have affected the functioning of his cheek, jaw, or neck. Thus, DC 7805 is not applicable. In summary, the probative evidence of record weighs against assignment of an initial compensable rating for scars. As shown above, there is no evidence showing that the Veteran is entitled to an initial compensable rating for scars at any point since his claim for service connection. Thus, staged ratings are not appropriate for the time frame on appeal. See Hart, 21 Vet. App. at 509-10; Fenderson, 12 Vet. App. at 126. The Veteran has not stated and the evidence of record does not otherwise suggest that his scarring is sufficiently incapacitating to prevent him from obtaining or maintaining substantially gainful employment. Thus, the issue of entitlement to TDIU has not been raised. See 38 C.F.R. §§ 3.340, 4.16 (2013); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that if a veteran or the record reasonably raises the question of whether he or she is unemployable due to the disability for which an increased rating is sought, part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability resulting from that disability is warranted). The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2013); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the veteran's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the veteran's disability picture requires the assignment of an extraschedular rating. Id. Referral for extraschedular consideration is not warranted. A comparison of the Veteran's scars and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Veteran's scars are manifested by symptoms and functional impairment expressly addressed by the rating criteria, including linear scaring and pigmentation. See March 2010 VA examination report. He does not have symptoms associated with scarring that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes. Because the evidence does not show that the Veteran's scars are "exceptional" or "unusual" when compared with the rating criteria, the available schedular evaluations are adequate to rate this disability. Thus, the first step of the extraschedular inquiry is not satisfied. See id. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See id. at 118-19 (holding that the Board's "threshold" finding that the rating criteria were adequate to evaluate the veteran's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Moreover, such related factors are not shown. Accordingly, referral for extraschedular consideration is not warranted. Id. ORDER Entitlement to an initial compensable rating for scars is denied. REMAND The Veteran's service connection claim for an acquired psychiatric disorder to include anxiety and depression must be remanded for a VA examination. Specifically, the private medical records show that the Veteran was diagnosed as having generalized anxiety in November 2007 and depression in December 2008. Service treatment records show that he was involved in two altercations during active duty, which resulted in two scars on his forehead and one on his scalp. The Veteran stated in August 2008 and September 2011 that he was twice assaulted during military service and had lived with the resulting scars for approximately 40 years and now has depression. His statements suggest that his anxiety or depression may be associated with the in-service assaults or secondary to his service-connected scars. McLendon, 20 Vet. App. at 79. On remand, the RO/AMC should obtain a VA opinion that assesses the likelihood that the Veteran's current anxiety and depression are related to an in-service event, injury, or disease or to his service-connected scars. In addition, the RO/AMC should request that the Veteran identify any additional pertinent treatment records. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran to identify any relevant treatment records that are not currently in the claims file pertaining to his acquired psychological disorder to include anxiety and depression and secure these records. If any records are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies in his possession. 2. Schedule the Veteran for a VA examination to assess the nature of his acquired psychological disorder to include anxiety and depression and the likelihood that the disorder relates to active service. The entire claims file and a copy of this REMAND must be available to the examiner for review. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The following considerations will govern the opinion: a. The examiner must render an opinion as to whether the Veteran's current acquired psychiatric disorder to include anxiety and depression had its onset during active service or is related to an in-service disease, incurrence or aggravation (PERMANENT WORSENING) of a disease, or an injury or was aggravated during service. b. The examiner must also render an opinion as to whether the Veteran's current psychiatric disorder to include anxiety and depression was either CAUSED OR AGGRAVATED (PERMANENTLY WORSENED) by his service-connected scars. c. The examiner has an independent responsibility to review the entire record for pertinent evidence, including any pertinent medical evidence that is added to the record as a result of this remand. However, the examiner's attention is called to: The Veteran's account of having been assaulted in service and sustaining head scars is credible. VA medical examination dated March 2010 indicating that following completion of Naval service, the Veteran "worked in a utilities company for 38 years, worked effectively, and retired with full benefits; Treatment records generated by Joe Martin, M.D., indicating "initial medicare physical" dated January 2006; Veteran's report that in May 2009, the Veteran was prescribed LEXAPRO by Dr. Martin, and was treated for fatigue, insomnia, Treatment record generated by Dr. Martin dated in June 2010 and indicating Veteran had "history of anxiety and depression." d. The examiner must conduct all tests and/or studies necessary for an accurate assessment, (to include any tests indicative of discrepancies between subjective assertions and clinical findings and assessments), and diagnose any psychiatric disorder existence since August 2009. e. The examiner must provide a complete explanation of his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If the requested medical opinion(s) cannot be given, the examiner must state the reason(s) why. Then, review the medical examination report to ensure that it adequately responds to the above instructions, including providing an adequate explanation in support of the opinion stated. If the report is deficient in this regard, return the case to the VA examiner for further review and discussion. 3. After the above development and any other development that may be warranted based on any additional information or evidence received is completed, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. No action is required of the Veteran until further notice. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 2013). ____________________________________________ Vito A. Clementi 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) (2013). Department of Veterans Affairs