Citation Nr: 1754178
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 14-05 368 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder.

REPRESENTATION

Veteran represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

S. Kalolwala, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1987 to April 1988.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In May 2016, the Veteran appeared with her representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record.

This matter was remanded by the Board in August 2016 for additional development. The matter has been returned to the Board for appellate consideration.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.

REMAND

Regrettably, record reveals that the claim must again be remanded for additional development prior to appellate consideration.

Initially, the Board notes that review of the record since the August 2016 remand does not reflect substantial compliance with the directives of that remand. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds that the claims on appeal must again be remanded to the AOJ in order to ensure substantial compliance with the August 2016 remand.

In its August 2016 remand, the Board instructed the AOJ to, in pertinent part, readjudicate the issue on appeal and issue a supplemental statement of the case (SSOC) if the benefit sought remains denied. The record shows, however, that the developmental actions taken by the AOJ have not fully complied with the remand directives. Specifically, the AOJ returned the case to the Board without issuing an SSOC.

Next, the Board notes that where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In that regard, the Board notes that the Veteran was provided with a VA psychiatric examination in September 2016. Report of the September 2016 VA examination reflects, in pertinent part, a diagnosis of “unspecified depressive disorder in remission currently.” The examiner noted the psychiatric history, including the March 1988 mental health hospitalization in service and the June 2011 Intensive Outpatient Program (IOP) for depression and anxiety. The examiner further noted that the Veteran has previously been prescribed medication, i.e., Zoloft, post service to help alleviate her psychiatric symptoms. The examiner documented the Veteran’s statements regarding becoming depressed in service due to “such a negative environment.” The examiner further documented the Veteran’s statements regarding additional post-service stressors, including health and family issues. The examiner opined the Veteran’s psychiatric disability is less likely than not incurred in or caused by service. In doing so, the examiner noted the Veteran does not have active symptoms of depression, and that past depressive episodes are not incurred in the military. The examiner noted that the Veteran’s military service is “just 6 months,” and that the Veteran had “many other social stressors which could have contributed to her depression, rather than [a] short military stint causing ongoing problems.”

First, the examiner’s statement that the Veteran does not have any active symptoms of depression is inconsistent with the evidence of record. Specifically, the Veteran endorsed symptoms of depressed mood at the time of the September 2016 VA examination. Second, the examiner indicated that the past depressive episodes were not incurred in service. However, the examiner did not address whether or not just symptoms were caused by or otherwise etiologically related to service. Lastly, the examiner’s apparent focus on the Veteran’s “short stint” in service, rather than the mental health treatment in service and the Veteran’s lay statements of symptoms since service, is inappropriate. Specifically, although the examiner noted the Veteran’s March 1988 mental health hospitalization, the examiners opinion does not reflect any consideration of it. The Veteran’s service treatment records (STRs) dated in March 1988 reflects that the Veteran was diagnosed with adjustment disorder with mixed emotional features at discharge from the hospital. Moreover, the Veteran indicated being prescribed medication after service to help alleviate her psychiatric symptoms.

In light of the foregoing, the Board finds that the Veteran has not been provided with an adequate VA examination for purposes of determining service connection that adequately considers all of the evidence of record pertaining to her claimed disability. As such, the Board must remand for additional development.

Accordingly, the case is REMANDED for the following action:

1. Arrange for the examiner who conducted the September 2016 VA psychiatric examination, if available, to prepare an addendum opinion as to the nature and etiology of any claimed psychiatric disorder, and if deemed necessary, conduct new examinations of the Veteran.

The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report.

Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following:

Does the Veteran have a psychiatric disability? If so, the examiner should identify whether it is as likely as not (i.e., a 50 percent or better probability) that such disorder is caused by, or otherwise etiologically related to military service.

Any opinion rendered should reflect consideration of the Veteran’s lay statements regarding ongoing symptomatology, and discuss the in-service mental health treatment and corresponding diagnosis of adjustment disorder.

The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

2. Thereafter, readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and provide the Veteran and her representative with an opportunity to respond. Then return the case to the Board, if otherwise in order.

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 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 (2012).

_________________________________________________
THOMAS H. O’SHAY
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).

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