Citation Nr: 1805154 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-01 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), an anxiety disorder, and/or a nervous condition. 2. Entitlement to service connection for a skin condition, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Katrina Washington, Attorney at Law ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1978 to June 1981, and in the Navy from February 1983 to March 1988. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from May 2008 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The May 2008 rating decision denied service connection for a skin condition. The May 2012 rating decision determined that new and material evidence had not been received to reopen a claim for service connection for a nervous disorder and reopened and continued a pervious denial of service connection for PTSD. In an October 2013 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in February 2014 he withdrew his hearing request. See 38 C.F.R. § 20.704 (d). In January 2015, the Board consolidated the claims of service connection for PTSD and a nervous condition into a claim of service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board reopened the claims for service connection for a skin condition and an acquired psychiatric disorder, and then remanded all three claims for further development. Upon return to the Board, the matter was again remanded in June 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND This matter must be remanded because there was not substantial compliance with the Board's June 2016 remand directives. In the remand, the Board explained that it had previously remanded the case in January 2015 to, in relevant part, obtain a VA examination addressing the nature and etiology of any and all diagnosed psychiatric disorders with a complete rationale for all opinions. The Board then noted that, upon remand, a VA examination had been conducted in April 2015. However, the Board found that the VA examiner did not elaborate on the rationale where concluding that he could not assert that the Veteran's anxiety disorder was as likely as not caused by or a result of military service. After the Board's June 2016 remand, an addendum opinion was obtained in September 2016 from a different VA examiner. The examiner's response, in its entirety, was as follows: This is in response to the RO request for an opinion regarding whether or not the patient's diagnosis is related to his military experience. I have reviewed this report and the BVA remand dated 6/16. [That examiner] is very clear in his report that the patient's diagnosis is not due to or caused by his military experience. He included detailed information that resulted in this decision. Please see the above report for details. The Board now finds that this addendum is nonresponsive to the remand request. The addendum provider offered no additional rationale or explanation. Although the addendum provider may feel that the last VA examiner's opinion was "very clear," the Board previously remanded the matter because it found the last VA examiner's opinion to not be "very clear." This was the reason for the last remand, and the addendum' provider's statement that the VA examiner's opinion was "very clear" does not provide any further context or explanation to help the Board understand the April 2015 VA examiner's rationale. In short, the Board remanded the case to obtain an explanation as to why the April 2015 VA examiner could not opine whether the Veteran's anxiety disorder was as likely as not caused by or a result of military service. Upon remand, an addendum by a different examiner was provided in September 2016, but no further rationale was provided as asked by the Board. Thus, there was not substantial compliance with the Board's remand directives and a further remand is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). As previously explained by the Board, the Veteran asserts that he has a skin condition due to a psychiatric problem. See a May 2006 statement. As such the skin condition claim is intertwined with and must be deferred pending resolution of the acquired psychiatric disorder claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following action: 1. After completing any preliminary development needed, arrange for the Veteran to undergo a VA examination to address the claimed psychiatric disorder. The examination should be conducted by an examiner who has not previously examined the Veteran. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all psychiatric disorders found extant. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? In answering these questions, it is imperative that the examiner articulate the reasons underpinning each conclusion. That is, the examiner should (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence makes a nexus to service more or less likely. A report of the examination should be prepared and associated with the Veteran's VA claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric and skin problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After completing all actions set forth in paragraphs 1 and 2, plus any further action needed as a consequence of the development completed in paragraph 1 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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. §§ 5109B, 7112 (West 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).