Citation Nr: 1632650 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 11-17 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for depressive disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Air Force from February 1972 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in January 2013. A transcript of the hearing has been associated with the Veteran's claims folder. Unfortunately, the judge who conducted that hearing is no longer with the Board. In June 2015, the Board sent the Veteran a letter informing him of this and asking him if he wished to attend another hearing before a Veterans Law Judge who would render a determination in his case. He was further informed that if no response was received that it would be assumed that he did not want another hearing and that a decision on his claim would be made. No response was received from the Veteran. In April 2015, the RO granted service connection for PTSD. This represents a complete grant of his appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). 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 The Board has remanded this claim multiple times; however, previous remand directives were not followed. A remand confers upon a veteran, 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. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, another remand is necessary to properly adjudicate this claim. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If the disorder was not noted upon entry, the presumption of soundness may be rebutted by a showing, by clear and unmistakable evidence, both that a disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; VA Gen. Coun. Prec. 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). Such clear and unmistakable evidence includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. The Veteran's STRs show that at his January 1972 intake examination, he indicated that he had depression or excessive worry. However, he had a normal psychiatric examination and no psychiatric diagnosis was noted. While previous VA examiners focused on aggravation of the Veteran's depression, this was in error as the Veteran was presumed sound on entry and the record does not contain clear and unmistakable evidence that any psychiatric disorder existed prior to his active service. As such, the presumption of soundness attaches to the Veteran's case. The Veteran reported that he had psychiatric problems during his period of active service and afterwards, which he is competent to report. The Veteran's medical records show that he was diagnosed with depression in 1994. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA mental disorders examination with a psychiatrist or psychologist. If possible, the examination should be scheduled at the VA Medical Center in Dallas, Texas, and by an examiner who has not previously examined the Veteran. The examiner should diagnose any current psychiatric disability. In responding to the questions below, the examiner should keep in mind that no psychiatric disorder was diagnosed or noted upon entrance examination of the Veteran in July 1972. Therefore, he is presumed to be sound at service entrance. The lay history provided at various times concerning pre-service depression does not constitute clear and unmistakable evidence of pre-service existence, one of the criteria to rebut the presumption of soundness. Therefore, it has been legally determined that depressive disorder did not pre-exist the Veteran's period of active military service. It is not sufficient for the examiner to conclude that depression existed prior to service and was not aggravated therein. Rather, the examiner should respond to the questions below. The examiner then should address the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's depressive disorder began during or was otherwise caused by the Veteran's active service? Why or why not? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's depressive disorder was directly caused by his service-connected PTSD? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the Veteran's depressive disorder was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by his service-connected PTSD? Why or why not? If aggravation is found, the examiner should attempt to identify a baseline for the psychiatric disability, prior to the aggravation occurring. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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).