Citation Nr: 1808569 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-18 687A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and chronic depressive disorder, variously diagnosed as dysthymic disorder and major depressive disorder (MDD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and A.L. ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1958 to November 1977. This case comes to the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, a travel board hearing was held before the undersigned in St. Petersburg, Florida. A transcript of the hearing is associated with the Veteran's claims file. The matter was previously before the Board in June 2015 and July 2016. On those occasions it was remanded for further development of the evidence. The case was returned to the Board and, in a February 2017 decision, the Board denied entitlement to service connection for a chronic acquired psychiatric disorder. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to an August 2017 Order, following a Joint Motion for Remand (JMR). The parties requested that the Board obtain an additional examination to strictly comply with the requirements of the July 2016 remand. Specifically, the parties noted that in July 2016, the Board requested that a supplemental opinion be obtained to ascertain if there was a relationship between the depression of which the Veteran complained at separation and the current diagnosis of MDD. The parties agreed that the supplemental opinion obtained was inadequate because it failed to fully explain whether the Veteran's current depressive disorder diagnosis was related to service or the depression and nervous trouble that were endorsed at separation. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). 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 As noted, the parties agreed that the supplemental opinion obtained was inadequate because it failed to fully explain whether the Veteran's current depressive disorder diagnosis was related to service or the depression and nervous trouble that were endorsed at separation. Specifically, the parties found that the examiner did not adequately explain why the lack of treatment until 2010 or failure to report symptoms in 2009 rendered the currently diagnosed depressive disorder "less likely as not" related to service or the depression and nervous trouble reported in November 1977, at separation from service. As such, it was found that it did not comply with the Board's July 2016 remand instructions that required specific comment on the complaints of depression and nervous trouble noted at separation from service. Given the JMR, an additional examination is warranted. In addition, the Board notes that the Veteran's representative submitted a November 2017 private medical report that found that the Veteran met the criteria for a diagnosis of PTSD, which directly contradicted findings of the VA examiners who evaluated the Veteran's psychiatric disabilities in June 2013 and August 2015. On those examinations, examiners opined that the Veteran did not meet the diagnostic criteria for PTSD. Given the November 2017 opinion, an additional opinion is found to be necessary. Finally, the Board notes that the Veteran's representative has raised the issue of service connection for a psychiatric disorder as secondary to one of the Veteran's numerous service-connected disorders. Given this contention, an opinion regarding secondary service connection should be obtained. 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. Copies of pertinent updated treatment records should be obtained and added to the claims file. 2. Following completion of the above, the AOJ should arrange for the Veteran to undergo a VA examination by a psychiatrist or psychologist so ascertain the current nature and etiology of his current acquired psychiatric disorder(s). The examiner should be requested to render an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran currently meets the diagnostic criteria for PTSD that is related to service. The examiner should also discuss the etiology of any other diagnosed acquired psychiatric disorder and must specifically comment on the complaints of depression and nervous trouble that the Veteran endorsed at service separation. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any other diagnosed is of service onset or otherwise related to service. The examiner should also be requested to render an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder or disorders are proximately due to or aggravated by any of the Veteran's service-connected disabilities. The examiner must discuss in detail and attempt to reconcile with his/her opinions and conclusions the opinions and conclusions of the private examiner in the November 7, 2017 report. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 3. Thereafter, the AOJ should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. They should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2017). 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND 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) (2016).