Citation Nr: 1426510 Decision Date: 06/11/14 Archive Date: 06/16/14 DOCKET NO. 10-21 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Christopher Loiacono, National Veterans Disability Advocates, LLC ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1968 to March 1971. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A May 2013 decision of the Board reopened the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, and remanded it for further development. It has now been returned to the Board for further appellate review. At the time of the May 2013 Board decision, the Veteran did not have representation, however, following certification to the Board in July 2013, the Veteran submitted a new VA Form 21-22a, appointing the National Veterans Disability Advocates, LLC (NVDA) as his representative in August 2013. Because the request for a change in representation was received by the Board within 90 days of certification of his appeal, the Board recognizes the change in representation. 38 C.F.R. § 20.1304. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veterans Benefits Management System (VBMS) systems to ensure consideration of the totality of the evidence. In an August 2013 correspondence, the Veteran's representative raised the issue of entitlement to a total disability rating for individual unemployability (TDIU). As the RO has not adjudicated this issue, the Board does not have jurisdiction over it. Accordingly, the issue of entitlement to a TDIU is referred to the RO for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As stated above, in August 2013, the Veteran submitted a VA Form 21-22a, which appointed Christopher Loiacono of the National Veterans Disability Advocates, LLC as his representative. Since his appointment, the representative has not submitted any statements or a VA Form 646 (Statement of Accredited Representative in Appealed Case), pertaining to the issue on appeal. The Veteran is entitled to representation at all stages of an appeal. See 38 C.F.R. § 20.600. The AOJ must afford the representative the opportunity to execute a VA Form 646, prior to certification of the appeal to the Board "in all instances." 38 C.F.R. § 20.600; VA Adjudication Procedure Manual, M21-1, Part I, Chapter 5, Section F, Para. 27 (Aug. 4, 2009). While the record reflects that the representative was provided with a copy of the claims file in May 2014, the Veteran's representative must be provided the opportunity to offer written argument on his behalf. Also, pursuant to the Board's May 2013 remand, the Veteran was afforded a VA PTSD examination in June 2013. The examiner noted that the claims file had been reviewed, and found that the Veteran did not have a diagnosis of PTSD that met the DSM-IV criteria. The reasoning provided was that while the Veteran identified stressors that were related to his fear of hostile military and terrorist activity, he did not endorse an adequate number of symptoms to meet the full criteria for a diagnosis. However, the examiner did not address the Veteran's prior diagnoses of PTSD in VA treatment records, in particular, an April 2009 initial DSM-IV diagnosis of PTSD. As there is conflicting evidence in the file as to whether the Veteran meets the criteria for a PTSD diagnosis, and the June 2013 examiner failed to address the conflicting evidence, a new examination is warranted. Additionally, the June 2013 examiner did diagnose the Veteran with alcohol dependency, cannabis dependency in partial early remission, and substance induced mood disorder. The examiner stated that the Veteran's stressors were not adequate to support any of his diagnoses, and that his "substance induced mood disorder was secondary to his alcohol and drug dependency and that his claimed stressors were not causative factors because he was drinking and using drugs prior to the claimed stressor." The examiner then opined that it "was less likely than not that any currently diagnosed acquired psychiatric disorder is etiologically related to the Veteran's active military service." The examiner also noted that until the Veteran has been sober for at least two months during an examination, it would be difficult to determine if he has a mood disorder that is not induced by his substance abuse. This opinion is inadequate because the examiner's rationale only addressed whether the Veteran had a disability that was related to his claimed stressors, and did not address whether the Veteran had an acquired psychiatric disability that began in service or was otherwise related to service. Also, the VA examiner leaves open the possibility that the Veteran may have a mood disorder other than a substance induced mood disorder, which could only be determined if the Veteran were sober for two months. Accordingly, VA has failed to comply with the Board's May 2013 remand directive to obtain an adequate examination and medical opinion. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268 (1998). A remand is required for a new VA examination. Finally, the record reflects the Veteran has been receiving regular VA treatment from the VAMC North Texas Health Care System. The most recent records associated with the claims file are from August 2012. Updated VA treatment records, since August 2012, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA treatment records from the VAMC North Texas Health Care System, and all other associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period since August 2012. 2. After the above requested development is complete, schedule the Veteran for a VA mental disorders examination. The complete claims folder (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) must be reviewed in conjunction with the examination, and the examiner must clearly state that such was accomplished. Any testing deemed warranted should be accomplished. All indicated tests and studies should be performed. a) The examiner should identify the Veteran's currently diagnosed psychiatric disorders that meet the DSM-IV criteria. The presence or absence of a mood disorder and PTSD should be discussed. If the examiner determines that the Veteran does not have PTSD, the examiner should reconcile such findings with previous findings documented in VA treatment records reflecting a diagnosis of PTSD. b) If PTSD is diagnosed, then the examiner is asked to state whether it is at least as likely as not (a 50 percent probability or greater) that PTSD is related to the Veteran's active military service, including as related to the fear of hostile military or terrorist activity while in Vietnam. c) If a psychiatric disorder other than PTSD is diagnosed, then the examiner is asked to state whether it is at least as likely as not (a 50 percent probability or greater) that the currently diagnosed psychiatric disorder was incurred in, or is otherwise etiologically related to, the Veteran's active military service. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. 3. Afford the Veteran's current representative an opportunity to submit a VA Form 646, or equivalent, prior to recertification of the appeal to the Board. If the representative cannot be contacted, the Veteran should be so notified to ensure that his due process rights are protected. 4. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide them an opportunity to respond. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2013).