Citation Nr: 1338815 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-20 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a psychiatric disorder, other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to July 1983 and had additional service with the National Guard from November 2004 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2009, the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In April 2009 and February 2011, the Board remanded this matter for further evidentiary development. In May 2013, the Board denied service connection for PTSD and remanded the issue of service connection for psychiatric disorders other than PTSD. 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 The Board remanded the issue of service connection for a psychiatric disorder other than PTSD in May 2013 for a VA opinion. The relevant instructions requested the examiner to address whether any diagnosed psychiatric disorder 1) as least as likely as not arose during service or is otherwise related to any incident during service, or 2) was caused by or is aggravated by the Veteran's service-connected back or left ankle disability. In June 2013, a VA examiner opined that the Veteran's diagnosed psychiatric disorders are less likely as not related to any incident or event in service, and less likely as not caused by or a result of a service-connected disability. However, the examiner did not offer an opinion on aggravation, as requested. Therefore, remand is necessary to obtain an opinion on aggravation. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. VA may grant service connection for disability caused by service-connected disability or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain VA mental health treatment records dating since May 2013 from the White River Junction VA Medical Center to include the Keene outpatient clinic. 2. Return the claims file to the examiner who conducted the June 2013 VA mental disorders examination. An additional in-person examination is not needed, unless considered necessary by the examiner. If the June 2013 VA examiner is unavailable, the requested opinion should be obtained from a similarly qualified examiner. Following a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) any psychiatric disorder other than PTSD is aggravated (permanent worsening of the underlying disability beyond natural progress as opposed to temporary exacerbation of symptoms) by the Veteran's service-connected back or left ankle disability. If aggravation by a service-connected disability is found, then the physician should quantify the degree of such aggravation, if possible. In providing the requested opinion, the examiner should explain the medical basis for the conclusions reached. 3. After the development requested above, as well as any additional development deemed necessary, has been completed, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ K. A. BANFIELD 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).