Citation Nr: 1339011 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-40 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depression, and polysubstance abuse. 2. Entitlement to total disability for compensation purposes due to individual unemployability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to June 1973 and from April 1978 to October 1980. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In December 2012, the Veteran testified at a hearing before the undersigned Veterans law Judge, via videoconference. A transcript of the hearing is associated with the claims file. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, the Board determines that another remand is necessary in this case. In accordance with the March 2013 remand, the Veteran was scheduled for a VA psychiatric examination to assess the nature and etiology of his acquired psychiatric disorder. The examination was completed in April 2013. The examiner opined that the Veteran did not meet the criteria for a PTSD diagnosis, but did meet the criteria for the diagnoses of Mood Disorder and Alcohol Abuse. She then indicated that the Mood Disorder and Alcohol Abuse were less likely than not due to military experiences because there was evidence in the claims file of both occurring before the military. An acquired psychiatric disorder was not noted on the Veteran's clinical examination at enlistment, and the VA examiner did not offer an opinion on the question of aggravation of such disorder during military service. Therefore, the Board finds that the appeal should be remanded so that an opinion may be obtained as to whether the Veteran's acquired psychiatric disorder clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. Moreover, as the Veteran's TDIU claim is dependent on his service-connected disabilities, the TDIU claim is intertwined with the acquired psychiatric disorder claim. The United States Court of Appeals for Veterans Claims has held that all issues inextricably intertwined with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the TDIU claim must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Send the claims file to the April 2013 VA examiner, or appropriate substitute, to obtain another opinion as to the etiology of the Veteran's acquired psychiatric disorder. Upon a review of the record, the examiner should respond to the following: a. Does the evidence clearly and unmistakably establish that the Veteran's acquired psychiatric disorder preexisted service? If so, was it clearly and unmistakably not aggravated by service? The examiner is instructed that to find that the disability in question clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be obvious, manifest, and undebatable in establishing that it preexisted service and that it was not aggravated by service. See Cotant v. Principi, 17 Vet. App. 116 (2003). Aggravation exists when there is an increase in disability during such service that is not due to the natural progress of the disease. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as opposed to symptoms, is worsened. Aggravation may not be conceded where the underlying disability underwent no increase in severity during service. A complete rationale for any opinion advanced must be provided. If it is determined that the opinion cannot be formed without another clinical examination, such examination should be scheduled. 2. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If either benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, if any, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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).