Citation Nr: 1340481 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 07-38 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and depression, to include as secondary to the Veteran's service-connected disabilities, including Type II diabetes mellitus, bilateral diabetic peripheral neuropathy, and bilateral diabetic retinopathy with cataracts. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to October 1970. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Nashville, Tennessee. In December 2010, and May 2013, the Board remanded the claims for additional development. 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 Veteran asserts that he has acquired psychiatric disorder, to include a mood disorder and depression, to include as secondary to the Veteran's service-connected disabilities, including Type II diabetes mellitus, bilateral diabetic peripheral neuropathy, and bilateral diabetic retinopathy with cataracts. In June 2011, the Veteran was afforded a VA examination. The Axis I diagnosis was depressive disorder, not otherwise specified. The examiner noted that the Veteran's symptoms were mild in nature, and that he appeared to be stable without treatment. In April 2012 an etiological opinion was obtained from B.W., a psychologist, who based his opinion upon a review of the claims file, but who did not examine the Veteran. Dr. B.W concluded that the Veteran's depressive symptoms were linked to his loss of employment (being laid off) in August 2007, and stated, "Even if one assumes the Veteran's medical problems cause his current depression, only some of his most serious problems are service-connected." He concluded that the Veteran's current depressive symptoms were less likely as not caused by or a result of his military service. In May 2013, the Board remanded these claims. With regard to the claim for an acquired psychiatric disorder, the Board noted that the April 2012 VA opinion did not discuss the possibility that the Veteran's service-connected disabilities had aggravated his depressive disorder, and directed: Based on review of the claims folder, the examiner/reviewer should state whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's depressive disorder is aggravated by the Veteran's service-connected disabilities. If so, the examiner should quantify the extent of aggravation, if possible, or explain why quantification is not possible. In June 2013, a supplemental opinion was obtained from Dr. B.W. He stated that he had not interviewed or seen the Veteran to this point. He stated: Diabetes and coronary artery disease are very often associated with comorbid depression in the literature, and it's clear these conditions pose significant challenges in the Veteran's life. As such, the examiner is willing to assert these service-connected conditions most likely (more than 50/50 probability) aggravate the Veteran's depressive condition. That said, the examiner is simply unable to specify the degree of aggravation on the basis of the Veteran's treatment record alone. To the extent that service connection is claimed on a secondary basis, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2013). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) (emphasis added). Dr. B.W.'s opinion does not discuss the facts of the Veteran's case. He did not cite to any clinical findings, or to any facts particular to the Veteran's medical history, in support of his conclusion. Dr. B.W.'s conclusion therefore appears to be speculative in nature, and it does not warrant any probative value. Current regulations provide that service connection may not be based on a resort to speculation, or even remote possibility. See 38 C.F.R. § 3.102 (2013); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); see also Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning). Id. Furthermore, in its Remand, the Board directed that if aggravation were found, "the examiner should quantify the extent of aggravation, if possible, or explain why quantification is not possible." (emphasis added). However, Dr. B.W. merely stated that he was "unable to specify the degree of aggravation on the basis of the Veteran's treatment record alone." The Board does not regard this statement as an adequate explanation, as it amounts to no more than a declaration of an inability to quantify the extent of aggravation because the Veteran has not been afforded in-person examination. Id.; see also Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Given the medical opinion that in-person examination is required to address the question of increase in severity above baseline, such examination should be afforded to the Veteran. The Board is obligated by law to ensure that the RO 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. Stegall v. West, 11 Vet. App. 268 (1998). The Board may seek further evidentiary development if the favorable evidence, along with the other evidence of record, is not sufficient to allow the Board to make a fully informed decision. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Dr. B.W.'s opinion is insufficient for adjucation of the claims. The Board further notes that the Veteran has not been afforded an examination since June 2011. Given the foregoing, on remand, Veteran should be afforded an examination, and etiological opinions should be obtained. With regard to the claim for a TDIU, the service connection issue on appeal being remanded is inextricably intertwined with the TDIU issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Parker v. Brown, 7 Vet. App. 116, 11(1994). Therefore, adjudication of the TDIU claim must be deferred. The appellant is hereby notified that it is the appellant's responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Associate current VA treatment records with the claims folders. 2. The Veteran should be scheduled for an in-person psychiatric examination, in order to ascertain the nature and etiology of any acquired psychiatric disorder. The claims folder and a copy of this REMAND should be reviewed by the examiner, and the examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. The examiner must be provided with a list of the Veteran's service-connected disabilities and the date of the grant of service connection for each disability. The examiner should identify the date of diagnosis of diabetes, peripheral neuropathy, and retinopathy with cataracts, if different than the date of the grant of service connection for the disability. a) The examiner should provide an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran has an acquired psychiatric disorder that had its clinical onset during the Veteran's period of active duty service. b) If, and only if, the examiner determines that the Veteran does not have an acquired psychiatric disorder that had its clinical onset during the Veteran's period of active duty service, the examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any diagnosed acquired psychiatric disorder was caused by, or aggravated by, any of the Veteran's service-connected disabilities. c) If the examiner finds that the Veteran has an acquired psychiatric disorder that has been aggravated by any of his service-connected disabilities, the examiner should provide an opinion as to the extent of the aggravation, and provide a baseline level of severity prior to the aggravation. The opinion should discuss the evidence of severity of the psychiatric disorder prior to the onset of the service-connected disabilities as compared to the severity after the grants of service connection for the service-connected disabilities. d) "Aggravation" is defined as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. e) If the examiner cannot express any part of the requested opinions without resort to speculation, the examiner should explain the reasons therefor. f) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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. 3. The RO/AMC must review the examination report taking into consideration the inadequacies that the Board found in the June 2013 supplemental opinion, and ensure that the opinions rendered are adequate. If they are not adequate, the RO/AMC must take corrective action. 4. Readjudicate the issues of entitlement to service connection for an acquired psychiatric disorder, to include as caused or aggravated by a service-connected disability under 38 C.F.R. § 3.310, and entitlement to TDIU. If either of the determinations of these claims remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence, and applicable law and regulations considered. The appellant and his representative should be given an opportunity to respond to the SSOC. 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). _________________________________________________ Tresa M. Schlecht Acting 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).