Citation Nr: 1339748 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 08-32 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, affective disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active service from December 1970 to September 1973. This decision comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. This case was previously before the Board in December 2011, at which time the issue currently before the Board was remanded to the Appeals Management Center (AMC) and/or RO for further evidentiary development, including obtaining additional VA records and obtaining appropriate VA examinations. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the RO and AMC have complied with some of the Board's remand directives. Unfortunately, it does not appear that all remand directives have been accomplished, as discussed in detail below. As such, the appellant's claim for entitlement to service connection for an acquired psychiatric disorder must be remanded yet again. Stegall, supra. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND In its December 2011 remand, the Board directed the AMC/RO to schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorders that may exist such as PTSD, depression or bipolar disorder. The VA examiner was instructed to not only offer an opinion as to whether the Veteran had a diagnosis of PTSD as a result of his active service but also as to whether it was at least as likely as not that any diagnosed psychiatric disorder (other than PTSD) had its onset in service or was otherwise etiologically related to his active service. The latter part of this opinion request was not accomplished. Specifically, while a VA examiner determined in a March 2012 VA psychiatric examination that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria, he failed to provide an opinion as to the etiology of his diagnosed bipolar affective disorder. He did not address the question of whether it was at least as likely as not that the Veteran's diagnosed bipolar affective disorder had its onset in service or was otherwise etiologically related to his active service. The examiner merely noted that the Veteran was already collecting non-service connected benefits for bipolar affective disorder. As the examiner was instructed to provide an opinion as to the nature and etiology of any acquired psychiatric disorder and failed to do so, the Board finds that the examiner failed to comply with the Board's December 2011 remand. Stegall, supra. The case must be remanded again so the examiner may comply with these remand directives. The Board notes that the Veteran submitted a December 2011 statement asserting that, in the alternative, he had an acquired psychiatric disorder before entering service, and that his active service aggravated his preexisting condition. This assertion should be further developed on remand. As the case is being remanded, the Board will take the opportunity to obtain any outstanding treatment records. (CONTINUED NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. Copies of all outstanding treatment records, to include VAMC records, and any other records identified by the Veteran, should be obtained and added to the claims folder. 2. The Veteran should be returned to the examiner who conducted the March 2012 VA examination for an addendum opinion. If that examiner is no longer available, a new examination should be conducted in order to determine the nature and etiology of any acquired psychiatric disorder. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. Opinions should then be given to address the following: (a) Is there clear and unmistakable (obvious or manifest, undebatable) evidence that any psychiatric disorder (most notably bipolar disorder) pre-existed the Veteran's active service. (b) If any acquired psychiatric disorder pre-existed the Veteran's active service, is there clear and unmistakable evidence that the Veteran's preexisting acquired psychiatric disorder was not aggravated by his active service beyond its natural progression. In answering questions (a) and (b), the examiner should consider and address the Veteran's report of experiencing nervousness prior to service, which he states is evidence that his bipolar disorder preexisted service or at least in a prodromal stage/form, and that the circumstances and stresses of his service aggravated his psychiatric disorder. (c) If the examiner determines that the Veteran's acquired psychiatric disorder did not pre-exist service, then the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed acquired psychiatric disorder had its onset in service or is otherwise etiologically related to active service. Consideration must again be given to the service treatment records that document complaints of nervousness at enlistment and discharge as well as the Veteran's stated history of experiencing chronic psychiatric symptoms since service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other development that the RO deems necessary, the claim for entitlement to service connection for an acquired psychiatric disorder should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has an adequate opportunity to respond, the case should be returned to the Board for further appellate review. 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. 2013). _________________________________________________ MICHAEL A. HERMAN 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).