Citation Nr: 1634303 Decision Date: 08/31/16 Archive Date: 09/06/16 DOCKET NO. 05-25 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a bilateral foot disorder. 3. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In May 2013, the Board, in relevant part, denied the service connection claims for bilateral foot and knee disorders. In a July 2014 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for remand (JMR) and vacated the Board's May 2013 decision with respect to these claims. The Court remanded the case for further action consistent with the terms of the joint motion. In December 2014, the Board remanded these claims for further development in accordance with the JMR. In a March 2014 decision, the Board, in relevant part, denied service connection for an acquired psychiatric disorder. In a March 2015 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a March 2015 JMR and vacated the Board's March 2014 decision with respect to the denial of this claim. The Court remanded the case for further action consistent with the terms of the joint motion. The Board notes that the Veteran has perfected an appeal concerning other claims and has retained a private attorney to represent him on those matters. These claims are addressed in a separate decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to the claim for a psychiatric disorder, a new VA examination and opinion must be obtained. In this regard, in the March 2015 JMR, the parties agreed that VA medical opinions provided in August 2012, May 2013, and July 2013 on which the Board relied in its denial of the claim were inadequate. First, the JMR notes that the examiner who rendered the opinion stated that there were no VA treatment records indicating that the Veteran's "depressive symptoms . . . are related to service." However, the JMR states that "contrary to this observation," there is a September 1998VA treatment record showing that the Veteran reported depression "from being in the service," and that he was "tearful about his experience in the service." Further, another September 1998 record reflects that the Veteran reported that he was "still having problems with his military experiences which[h] are upsetting." The parties agreed that the examiner's finding that the VA treatment records did not indicate that the Veteran's depressive symptoms were related to service did not account for these statements. Second, the JMR notes that the VA examiner stated that the Veteran had a "history of dreams about the service," including "dreaming that soldiers are holding him down and beating him up," but did not address the fact that the Veteran states that he was actually attacked by fellow members in service, and "not merely that he dreamed of such events." Finally, the JMR finds that the examiner provided no rationale in support of the opinion that it was "less likely than not" that the Veteran's service-connected back disability aggravated his depression. With regard to the service connection claims for bilateral foot and knee disorders, the Board's December 2014 remand directives have not yet been accomplished. Accordingly, these claims are remanded again for action pursuant to the Board's December 2014 directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. Complete the Board's December 2014 remand directives with regard to the service connection claims for bilateral foot and knee disorders, including obtaining a supplemental medical opinion in accordance with the Board's instructions. 2. Arrange for a new VA examination and opinion regarding the service connection claim for a psychiatric disorder. The claims file must be made available to the examiner for review. All pertinent examination findings must be recorded. After reviewing the file and examining the Veteran, the examiner must render the following opinions: Direct service connection: The examiner must opine whether it is at least as likely as not (50% probability or more) that any current psychiatric disorder, including depression, dysthymia, and substance-induced mood disorder, is medically linked to service. The examiner must consider and account for the following (in addition to any other information or evidence deemed pertinent): a) A September 1998VA treatment record shows that the Veteran reported depression "from being in the service," and that he was "tearful about his experience in the service." Another September 1998 record reflects that the Veteran reported that he was "still having problems with his military experiences which[h] are upsetting." b) The Veteran states that during service he was attacked by other service members, not merely that he has dreamed of being attacked. A complete explanation must be provided in support of the conclusion reached. Secondary service connection based on aggravation: Whether it is at least as likely as not (50% probability or more) that any current psychiatric disorder, including depression, dysthymia, and substance-induced mood disorder, was aggravated by the Veteran's service-connected back disability. "Aggravation" means an increase in severity of the disorder beyond any medically established baseline. A complete explanation must be provided in support of the conclusion reached. 3. Then, review the claims file and ensure that all requested development actions have been completed in full. If any VA examination report does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action. 4. Finally, after completing any other development that may be indicated, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board. The Veteran 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). These claims 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). _________________________________________________ P. M. DILORENZO 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) (2016).