Citation Nr: 1004626 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 06-25 406 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for psychiatric disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from August 1991 to June 1992. This appeal to the Board of Veterans' Appeals (Board) arises from a February 2005 rating decision in which the RO, inter alia, denied service connection for psychiatric disability, then characterized as depressive disorder, not otherwise specified. In April 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2006. In this appeal, the Veteran testified during two hearings on appeal: in August 2005, before a Decision Review Officer (DRO) at the RO; and, in June 2009, before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. Given the record, and what the RO has actually adjudicated, the Board has more broadly characterized the issue on appeal, as reflected on the title page. In November 2002, October 2003, October 2005, and August 2007, the Board remanded the Veteran's claim to the RO (since October 2005, via the Appeals Management Center (AMC) in Washington, DC)), for further action, to include additional development of the evidence. Most recently, after accomplishing further action, the AMC continued the denial of the claim (as reflected in a November 2009 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. For the reasons expressed below, the matter on appeal is, again, being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matter on appeal. Despite multiple attempts to develop the record, the record still contains conflicting medical opinions on the matters of whether the Veteran has a currently diagnosed acquired psychiatric disability and, if so, whether that disability is related to his service-and none of those opinions is sufficient to resolve these questions,. In November 2004, the Veteran underwent VA examination. Following a review of the claims file and examination of the Veteran, the examiner concluded that the psychiatric symptoms and diagnoses noted during service could easily be accounted for by the existence of a major affective disorder, such as the diagnosed bipolar affective disorder. The current diagnosis was bipolar affective disorder. The examiner opined that the most likely causes of the disabling diagnosis were military events, situations, demands, and incidents, with the exception of diagnosed sexual paraphilia, which predated service and that it was at least as likely as not caused by or a result of military stressors, situations, experiences, and injuries. In December 2004, the Veteran underwent VA examination. His claims file was reviewed. The examiner noted the Veteran's difficult childhood. The examiner opined that the Veteran had characterological difficulties that stemmed from childhood. While he was previously diagnosed with bipolar disorder, he was not currently receiving any medication, which is usually used to treat those with bipolar affective disorder. He believed the Veteran had poor impulse control and inappropriate management of anxiety, not rapid cycles. The diagnoses were depressive disorder, not otherwise specified, based on the Veteran's life experiences since discharge from service; and pedophilia, in remission. He was also diagnosed with avoidant personality disorder. The examiner opined that the Veteran did not meet the criteria for bipolar disorder or schizoaffective disorder. In what appears to have been an attempt to resolve the conflicting medical opinions on the matter of diagnosis, the RO scheduled the Veteran to undergo VA examination in February 2008. His claims file was reviewed, and the previous VA examination reports were noted. The examiner indicated that it was apparent that there was no psychosis or delusional disorder. Based on their interview, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of major depressive disorder or any other type of depressive disorder. The examiner noted that the Veteran gave no indication of any type of manic episode. The examiner expressed his feeling that the Veteran did not have bipolar disorder or any other acquired psychiatric disorder. The examiner indicated that there appeared to be no Axis I diagnosis for the Veteran, but that he exhibited the traits for personality disorder. The Board finds that the medical opinion evidence is insufficient to resolve the Veteran's claim. While the November 2004 VA examiner diagnosed bipolar affective disorder and opined that this diagnosis was related to service, none of the subsequent medical evidence shows a diagnosis of bipolar affective disorder. In addition, it is clear from the examination report that the examiner specifically related the Veteran's in-service symptoms to this particular diagnosis. Interestingly, however, subsequent medical evidence reflective no diagnosis of bipolar affective disorder.. The December 2004 medical opinion indicates that the Veteran had no diagnosis of bipolar disorder and that his diagnosis of depressive disorder was due to post-service events. However, the December 2004 VA examiner based his rejection of a diagnosis of bipolar disorder largely on his assumption that the Veteran was on no medication for this disorder, and subsequent medical evidence shows that the Veteran was taking the medications Wellbutrin and Lexapro. Moreover, the February 2008 VA examiner did not address the Veteran's psychiatric treatment and symptoms in service. While this examiner likely did not discuss these symptoms because he determined the Veteran did not have a currently diagnosed acquired psychiatric disability, the Board notes that all other pertinent medical evidence of record shows a diagnosis of an acquired psychiatric disability. Furthermore, in rendering the opinion, the examiner seemed someehat equivocal, and was not sufficiently definitive. Under these circumstances, the Board finds that further examination of the Veteran and panel opinion, by at least two psychiatric professionals (psychologists or psychiatrists), is needed. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The panel should provide a clearer, more definitive medical opinion as to whether the Veteran has a currently diagnosed acquired psychiatric disability and, if so, whether any disability is related to service. In providing the requested opinion, the panel should specifically consider and discuss the service treatment records and the November 2004 and February 2008 VA medical opinions. Accordingly, the RO should arrange for the Veteran to undergo VA psychiatric examination, by a panel of at least two psychiatrists or psychologists, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection for psychiatric disability (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the panel is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). After providing the required notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA psychiatric examination, by a panel of at least two psychiatric professionals (psychologists or psychiatrists), at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to each psychiatrist or psychologist designated to examine the Veteran, and the single report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining psychologists or psychiatrists prior to the completion of their report), and all clinical findings should be reported in detail. In a single, collaborative report, the panel should clearly identify whether the Veteran has current psychiatric disability/ies. If so, with respect to each such diagnosed disability, the panel should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service. In rendering an opinion, the panel should specifically consider and discuss the service treatment records and the November 2004 and February 2008 VA examination reports. The panel should set forth all examination findings, together with a complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2009). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2009).