Citation Nr: 1418505 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 07-34 819A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include Major Depressive Disorder and/or posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertensive vascular disease, to include as secondary to diabetes mellitus, type II and coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1971 to September 1975, including service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions in February 2006 and September 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2010, the Veteran appeared at a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is in the claims file. The record was held open for an additional 60 days to provide the Veteran with an opportunity to submit additional private medical records. No additional records were received. In December 2010 the Board remanded the issues of service connection for an acquired psychiatric condition, to include Major Depressive Disorder and/or PTSD, and service connection for hypertension. For the reasons discussed below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Pursuant to the Board's December 2010 remand, examinations addressing the etiology of the Veteran's psychiatric disorder and hypertension were provided in March 2011. However, the examination reports are inadequate, as the examiners did not provide adequate rationales for their opinions, nor did the examiners consider all the pertinent information of record, or the questions the Board had requested. With respect to the psychiatric claim, the record shows various diagnoses including depressive disorder and posttraumatic stress disorder (PTSD), which the Veteran relates to a race riot that occurred during military service. The Veteran also has stated that he has had depression since he was 19 and has experienced symptoms of depression since service. An examination in February 2007 notes that the Veteran had a personality disorder since childhood. Other examiners have stated that the Veteran had behavioral problems and other symptoms of a psychiatric disorder during his childhood. As a result, on remand, the examiner was requested to provide an opinion as to whether the Veteran had a psychiatric disorder prior to service, and whether it was aggravated beyond its natural progression by his period of service. This was not addressed in the March 2011 opinion provided. In addition the examiner did not address the Veteran's lay statements regarding his symptoms in service and since service. The Veteran also has related his psychiatric disorder to a race riot, which he states occurred in 1972 when he was assigned to the USS Cayuga. He notes that the initial fight broke out on the Kitty Hawk and ended up on the USS Cayuga, where he was stationed. Efforts should be made on remand to corroborate whether this event has been documented in the service records. With respect to the hypertension opinion, in addition to no adequate rationale being provided, the Veteran's representative referenced a study in a November 2012 statement, which relates hypertension to diabetes. The examiner providing the opinion should consider this study in the opinion provided. The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the Board or the RO is neither optional nor discretionary. 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, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain copies of any outstanding recent VA treatment records and associate them with the claims file. 2. Contact the relevant service department in efforts to obtain corroborative evidence of the Veteran's reported race riot, which occurred in 1972 initially starting on the USS Kitty Hawk and then ending up on the USS Cayuga, where he was assigned. If efforts to corroborate this event are unsuccessful or a negative response is received from the service department, notify the Veteran and indicate what further steps VA will make concerning his claim. 3. Then, afford the Veteran an appropriate VA psychiatric examination. A copy of the claims file and this remand should be provided to the examiner for review. For each psychiatric disorder diagnosed, the examiner must opine as to the following: a). Whether it is at least as likely as not (a probability of 50 percent or greater) that the acquired psychiatric disorder was incurred in his military service, to include his experiences in Vietnam. b). If the Veteran's psychiatric disorder(s) were not caused by his period of military service, the examiner must provide an opinion as to whether the Veteran had a psychiatric disorder that clearly and unmistakably (obviously, manifestly, or undebatably) existed prior to his period of military service. c) If there is clear and unmistakable evidence that the Veteran had a psychiatric disorder prior to service, the examiner must provide a diagnosis and an opinion as to whether there is clear and unmistakable evidence (evidence that is obvious, manifest, or undebatable) that it was not aggravated beyond its natural progression during service. The examiner should consider the Veteran's lay statements regarding symptoms in service and after service in rendering this opinion. A complete rationale must be provided for all opinions rendered. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. Afford the Veteran an appropriate VA examination for his hypertension. A copy of the claims file and this remand should be provided to the examiner for review. The examiner must opine as to the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was proximately due to or the result of his service-connected diabetes mellitus and/or coronary artery disease. b) Whether it is at least as likely as not (50 percent or greater probability) that hypertension was aggravated beyond its natural progression by his service-connected diabetes mellitus and/or coronary artery disease. The examiner is asked to consider that the term "aggravation" means a permanent increase in severity, that is, a worsening of the underlying condition not due to the natural progress as contrasted to a worsening of symptoms. c) If the examiner finds that the Veteran's hypertension was not caused or aggravated by a service-connected disability, state whether it is at least as likely as not (50 percent or greater probability) that the hypertension began during active service, is related to any incident of service, or began within one year after discharge from active service. The examiner also should consider the study referenced by the Veteran's representative in a November 2012 Post-Remand Brief, Sowers JR, Frohlich ED, Insulin and Insulin resistance: impact on blood pressure and cardiovascular disease. Med. Clin N Am 88:63-82, 2004. A complete rationale must be provided for all opinions rendered. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 5. Review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ D. MARTZ AMES 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) (2013).