Citation Nr: 1337888 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-19 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression or a psychiatric disorder secondary to or aggravated by service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from August 1982 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was remanded by the Board in August 2011 and again in June 2013. 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 In June 2013, the Board remanded this claim for additional development. The Board requested that the Veteran be evaluated under specified conditions and the Board directed that specific questions be answered by the examiner regarding the disorder on appeal. Review of the file reveals that the instructions presented by the Board were not adequately followed or addressed. A remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board requested that for each current acquired psychiatric disorder which did not clearly and unmistakably pre-exist the Veteran's service, the examiner should address the following if it is at least as likely as not (50 percent or greater likelihood) that the disorder (a) was incurred as a result of or is etiologically related to the Veteran's service, or, (b) was first manifested while the Veteran was in service, or (c) is secondary to service-connected diabetes mellitus, or (d) is permanently aggravated by service-connected diabetes mellitus. A July 2013 VA examiner diagnosed major depressive and it was stated that major depressive disorder was not diagnosed until after service and that the Veteran was not diagnosed in service with major depressive disorder. The examiner stated that the disorder was not diagnosed in the near future after service and that it then is not due to service and cannot be aggravated by service. First, the examiner did not address whether the major depressive disorder is due to or aggravated by the service connected diabetes mellitus, as mandated by the Board. As was pointed out by the Veteran's representative, a remand is required for compliance with the Board's remand mandates. Second, the rationale that the major depressive disorder is not related to service since it was not diagnosed in service or in the near future after service is not adequate for making a determination as to direct service connection. See, e .g., Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board notes that the United States Court of Appeals for Veterans Claim's (Court) directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2013). Therefore, a remand is warranted for an adequate opinion. Accordingly, the case is REMANDED for the following actions: 1. Return the claims file to the July 2013 VA examiner, or if unavailable, to another appropriate medical specialist, for an addendum opinion. The claims file and any pertinent electronic medical records must be reviewed. The examiner must offer an opinion with complete rationale as to whether it is at least as likely as not that the diagnosed major depressive disorder was incurred in service or is due to or aggravated (i.e., made permanently worse) by the service-connected diabetes mellitus. The examiner must consider the Veteran's contentions as well as the medical evidence of record. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After the requested development has been completed, the record should be reviewed to ensure that there has been substantial compliance with these remand directives. If any deficiency is noted, take appropriate steps to ensure substantial compliance. 3. When the development requested has been completed, along with any other necessary development, the issue on appeal should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a supplemental statement of the case and be 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 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 Court 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). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).