Citation Nr: 1802447 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-10 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals, dislocation of the left thumb with degenerative joint disease. 2. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder secondary to residuals, dislocation of the left thumb with degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1976 to November 1977. These matters come before the Board of Veterans' Appeals (the Board) from a January 2010 rating decision and an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. With respect to his claim for entitlement to a disability in excess of 10 percent for residuals, dislocation of the left thumb with degenerative joint disease, the Veteran appeared for a video conference hearing in January 2013. A transcript of the hearing has been associated with the claims file. With respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder secondary to residuals, dislocation of the left thumb with degenerative joint disease, the Veteran was placed on a schedule list for a video conference hearing before a member of the Board. However, in a November 2013 statement, the Veteran requested to cancel his hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704 (e) (2016). In March 2014, the Board remanded this appeal for further development. The record consists entirely of electronic claims files and has been reviewed. Relevant information has been included in the record since the most recent supplemental statement of the case (SSOC) dated in August 2014, and has been considered pursuant to the waiver of initial AOJ review of the evidence filed by the Veteran. 38 C.F.R. §§ 19.31, 20.1304(c)(2016). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks a rating higher than 10 percent for his disability of residuals, dislocation of his left thumb with degenerative joint disease. He asserts his disability is more severe than what is represented by a 10 percent rating. Furthermore, the Veteran has asserted that he developed depression as a result of his service-connected left thumb disability. As noted above, the Board remanded this case in March 2014 for further development. A remand by the Board confers upon the 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). The March 2014 remand requested that the AOJ obtain the Veteran's recent medical treatment records and associate them with the Veteran's claim folder. The Board also directed the AOJ to obtain the Veteran's Social Security Administration (SSA) records, to include all determinations(s) and the medical records on which such determination(s) were based. The Board then directed the AOJ to schedule the Veteran for a VA examination to assess the current condition of his left thumb as well as assess the nature and etiology of any current acquired psychiatric disorder, to include major depressive disorder. Specifically, the Board wanted the examiner to discuss any diagnosed acquired psychiatric disorder, addressing both direct and secondary service connection, to include a discussion of aggravation with adequate rationale. Following the March 2014 remand, the Veteran's recent VA treatment records were associated with the file. Also added to the file was the Veteran's SSA determination that found the Veteran to be disabled in November 2012 in part due to his service-connected left thumb disability. However, the medical records on which the determination was made are not in the Veteran's file. They must be obtained because these records may be relevant to the issues on appeal. 38 U.S.C.A. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). The Veteran was afforded a VA examination in April 2014 in order to examine his left thumb and any acquired psychiatric disorders. The Board finds that the examiner's April 2014 opinion is incomplete to the extent that the examiner failed to give an opinion as to whether the Veteran's acquired psychiatric disorder was caused by service. Additionally, the examiner failed to include a discussion of possible aggravation of the Veteran's diagnosis of depression due to his service-connected left thumb disability. The VA must ensure an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Thus, this matter must be remanded for an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Request from the SSA all medical records associated with the Veteran's SSA disability claim. If no SSA records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 2. Obtain all VA treatment records for the Veteran's left thumb disability from September 2008 forward. 3. Obtain an addendum opinion from the March 2014 examiner. The examiner should review the record prior to the examination, to include a copy of this Remand. The examiner should address the following: (a) whether an acquired psychiatric disorder, to include major depressive disorder, is at least as likely as not (50 percent or greater probability) caused by or due to military service; (b) whether an acquired psychiatric disorder, to include major depressive disorder, is at least as likely as not (50 percent or greater probability) was aggravated (i.e., permanently worsened beyond the natural progression) by the Veteran's service-connected residuals of a dislocation of the left thumb with degenerative joint disease. If the examiner determines that an acquired psychiatric disorder is aggravated by the residuals of the dislocated left thumb with degenerative joint disease, the examiner should report the baseline level of severity of the acquired psychiatric disorder prior to the onset of aggravation. If some increase in severity of the acquired psychiatric disorder is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, if the claims remain denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).