Citation Nr: 1543558 Decision Date: 10/09/15 Archive Date: 10/13/15 DOCKET NO. 13-17 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for Crohn's disease, status post-operative. 2. Entitlement to service connection for an acquired psychiatric disability, to include depression (claimed as a mental condition), including as secondary to Crohn's disease. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from July to November 1979. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A March 2011 rating decision, in pertinent part, determined that new and material evidence was not received to reopen the Crohn's disease claim and, denied a TDIU. A February 2014 rating decision denied the mental disorder claim. The Veteran indicated in his Notice of Disagreement that he desired a local hearing before a decision review officer. The Veteran's representative subsequently withdrew that request. In June 2015, the Board remanded the Veteran's claims for additional development. The Board finds that there has not been substantial compliance with the remand instructions and this case is returned to the agency of original jurisdiction (AOJ) for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Veterans Benefits Management System. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). A remand by the Board confers upon an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the United States Court of Appeals for Veterans Claims held that "where... the remand orders of the Board...are not complied with, the Board itself errs in failing to insure compliance." Id. In June 2015, the Board determined the issues of entitlement to service connection for Crohn's disease, status post-operative; entitlement to service connection for an acquired psychiatric disability, to include depression (claimed as a mental condition), including as secondary to Crohn's disease; and entitlement to TDIU require addition development, specifically, obtaining additional VA opinion and post-service treatment records. Such has not been completed by the RO. Therefore, the RO must make an additional attempt to complete the instructions of the June 2015 Board remand Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain all relevant private and VA treatment records generated since April 2013 and add them to the claims file. Obtain any necessary releases from the Veteran for mental health treatment and Crohn's disease treatment. All efforts to obtain recent treatment records should be documented in the claims file. 2. Thereafter, forward the claims file to an appropriate clinician to determine if it is at least as likely as not that the Veteran's Crohn's disease is causally related to his active service or a service-connected disability, to include treatment for a service-connected disability. The clinician should opine on the following: i. is there at least a 50 percent probability that the Veteran's Crohn's disease is causally connected to his active service? ii. If the answer to question "i" is "No", is there is at least a 50 percent probability that the Veteran's Crohn's disease is due to medication, to include NSAIA, ingested by the Veteran for treatment, to include self-treatment, of pain, etc., related to the service-connected right leg edema? iii. If the answer to question "ii" is also "No", is there is at least a 50 percent probability that medication, to include NSAIA, ingested by the Veteran for treatment, to include self-treatment, of pain, etc., related to the service-connected right leg edema aggravates-that is, has chronically worsened the Veteran's Crohn's disease? The clinician should provide a full explanation for any opinion rendered. The explanation should include specific comment on the April 2015 opinion of Dr. S and the general literature related to Crohn's disease. The clinician should also discuss the clinical records, if any, which support, or do not support, the Veteran's allegation of long term use of NSAIA for his edema. If the clinician cannot render an adequate opinion without an examination of the Veteran, he should be scheduled for such. The claims file must be provided for review by the examiner as part of the examination. 3. If, and only if, the VA clinician opines that it is at least as likely as not that the Veteran's Crohn's disease is causally related to active service or the service-connected right leg edema, schedule the Veteran for a mental health examination. The examiner should opine as to whether it is at least as likely as not that the Veteran has an acquired psychiatric disability causally related to a service-connected disability, to include whether an acquired psychiatric disability has been aggravated (increased in severity beyond the natural progress of the disorder) by a service-connected disability. A full explanation must be provided for any opinion rendered, and should consider the Veteran's treatment, contentions, and history. 4. Upon completion of the foregoing, review the development undertaken to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 5. After completion of all of the above, re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental Statement of the Case. The case should thereafter be returned to the Board, if 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). 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 2014). _________________________________________________ BARBARA B. COPELAND 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) (2015).