Citation Nr: 1508060 Decision Date: 02/24/15 Archive Date: 02/26/15 DOCKET NO. 06-36 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to January 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In February 2009, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a May 2013 decision, the Board denied the Veteran's appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2014, the Court granted a joint motion of the parties and remanded the case to the Board for action consistent with the joint motion. The record before the Board consists of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). REMAND Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the Veteran's claim. In its July 2014 remand, the Board indicated the Veteran had been diagnosed with, inter alia, a mood disorder and bipolar disorder during the pendency of her claim. At that time, the Board also noted the reports of the Veteran's September 2011 and January 2013 VA examinations, which reflect the conclusion that the Veteran did not have an acquired psychiatric disorder, but rather presented with a personality disorder. Nonetheless, the Board remanded the case to obtain a comprehensive assessment of the Veteran, as well as a medical opinion relative to the status of any acquired psychiatric disorder present at any time during the pendency of the claim. Specifically, the examiner was instructed to review the Veteran's complete claim file and electronic files, and to perform a complete medical examination. Following the examination, the examiner was to specifically comment on whether the Veteran warranted a diagnosis of an acquired psychiatric disorder at any time during the pendency of the claim period. If it was determined the Veteran did warrant a diagnosis of an acquired psychiatric disorder during the pendency of the claim period, the examiner was to state whether that disability was causally related to her military service. If the examiner determined the Veteran did not warrant a diagnosis of an acquired psychiatric disorder at any time during the pendency of the claim, to specifically include bipolar or mood disorder, the examiner was to definitively state why he or she felt these diagnoses were not supported. During the October 2014 VA examination, the examiner cursorily concluded the Veteran, "does not meet diagnostic criteria for bipolar or mood disorder." The examiner further indicated the Veteran's, "presentation and history are consistent with a diagnosis of personality disorder with narcissistic traits and delusions." The examiner did not explain why a personality disorder is the most appropriate diagnosis, or why she felt the Veteran was previously mis-diagnosed with acquired psychiatric disorders, to include bipolar disorder and a mood disorder. Clearly, the examiner ignored the instructions to consider and discuss all diagnoses rendered during the pendency of the claim. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); 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, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Then, the RO or the AMC should arrange for an addendum medical opinion to be obtained from the VA examiner who conducted the Veteran's October 2014 VA mental disorders examination. All pertinent evidence of record must be made available to and reviewed by the examiner. A notation indicating this record review took place should be included in the examination report. Since she filed her claim in August 2005, the Veteran has been diagnosed with bipolar disorder and mood disorder. For each of these diagnoses and any other acquired psychiatric disorders present during the period of the claim, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the disorder originated during service or is otherwise etiologically related to the Veteran's military service. If the examiner determines that neither bipolar disorder nor a mood disorder was present in August 2005 or thereafter, the examiner must so state and explain why the diagnostic criteria for these conditions have not been met during the period of the claim. The examiner must specifically identify and discuss the evidence or medical findings that support a conclusion that the Veteran has not had bipolar disorder and/or mood disorder at any time during the period of the claim. A rationale for all requested opinions shall be provided. If any required opinion cannot be provided, the examiner should explain why. 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. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should again review the record and re-adjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).