Citation Nr: 1807071 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-01 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as secondary to lumbar spine degenerative joint and disc disease with spasms and anterolisthesis. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty from September 1998 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the Court granted a joint motion for partial remand (JMPR), which vacated and remanded the Board's September 2014 decision for action consistent with the JMPR. In September 2015 and May 2017 the Board remanded the case for additional development and it now returns for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that he has an acquired psychiatric disorder as secondary to his service-connected lumbar spine degenerative joint and disc disease with spasms and anterolisthesis. In the September 2014 decision, the Board denied the claim on the basis that the Veteran did not have a currently diagnosed acquired psychiatric disorder. In reaching such determination, the Board relied upon a July 2011 VA examination that found that the Veteran did not meet applicable diagnostic criteria for a current acquired psychiatric disorder. Since such examination and the September 2014 Board decision, additional VA treatment records suggesting the possible presence of a diagnosed acquired psychiatric disorder has been received. Specifically, such reflect a diagnosis of bereavement in January 2013, which appears to be linked to the 2012 death of the Veteran's spouse, and assessments of anxiety and depression, including a referral for evaluation of a possible mood disorder. See August 2009, October 2010, September 2017 primary care notes. However, it is unclear whether these assessments were preliminary in nature or were made in the context of the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV) or Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Therefore, in light of such newly received treatment records, the Board finds that another VA examination is necessary in order to determine whether the Veteran meets the applicable diagnostic criteria for a diagnosis of an acquired psychiatric disorder and, if so, whether such is related to his service-connected back disability. In this regard, the Board notes that, although the DSM-5 is currently in use for VA diagnostic purposes, the Veteran's claim was pending before the Board prior to August 4, 2014, and thus, the examiner render such determinations pursuant to the DSM-IV. See 80 Fed. Reg. 53, 14308 (March 19, 2015); 38 C.F.R. § 4.125. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his alleged acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the DSM-IV criteria at any point proximate to his January 2011 claim, even if such has since resolved. If the examiner finds that the Veteran does not meet the DSM-IV criteria for any acquired psychiatric disorder, he or she should reconcile such determination with the remainder of the evidence of record, to include VA treatment records reflecting bereavement and complaints of anxiety and depression, including a referral for evaluation of a possible mood disorder. (B) For any diagnosed acquired psychiatric disorder, the examiner should opine as to whether it is at least as likely as not (a 50 percent or higher probability) that the disorder is caused OR aggravated by the Veteran's service-connected lumbar spine degenerative joint and disc disease with spasms and anterolisthesis. For any aggravation found, please state the baseline level of severity of the acquired psychiatric disorder, established by the earliest available medical evidence, and describe the extent to which the condition was worsened by the Veteran's back disability. The examiner should provide an explanation for all elements of the opinion, and if any requested opinion cannot be provided without resort to speculation, the examiner should explain why not and whether any additional information would permit an opinion, (which facts should be identified) or whether a non-speculative opinion is beyond the limits of medical knowledge. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).