Citation Nr: 1108331 Decision Date: 03/02/11 Archive Date: 03/17/11 DOCKET NO. 03-08 614A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen the Veteran's claim for entitlement to service connection for PTSD. 3. Entitlement to an increased evaluation for muscle strain of the paraspinal muscles of T8-T12, rated as 10 percent disabling from October 7, 1998, and as 20 percent disabling from March 10, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Schechter INTRODUCTION The Veteran had active service from February 1980 to October 1983. A decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC, in February 1997 denied entitlement to service connection for PTSD; the Veteran did not file a timely appeal, and the decision became final. The Veteran thereafter endeavored to reopen that claim, which was denied in September 1999, and on which an appeal was initially brought to the Board of Veterans' Appeals (Board) from action by VARO in Detroit, MI. (The RO which now has original jurisdiction over the file is Atlanta). In a decision in July 2001, the Board held that new and material evidence had not been submitted to reopen the claim for service connection for PTSD, and denied that portion of the appeal. In the 2001 decision, the Board also specifically noted that the Veteran had filed a claim in November 1998 for entitlement to service connection for a psychiatric disorder distinct from the PTSD claim. The Board held that this was a new claim and referred that claim for initial consideration by the RO. The Board then remanded an appealed issue of entitlement to an increased (compensable) evaluation for muscle strain of the paraspinal muscles of T-8 through T-12. In March 2002 the RO denied entitlement to service connection for a psychiatric disorder other than PTSD. The Veteran timely appealed that decision. In a May 2003 rating action, the RO increased the evaluation for the Veteran's service connected muscle strain of the dorsal spine from noncompensable to 10 percent disabling, effective from November 17, 1998. The RO characterized that grant as a "full grant of the issue on appeal." However, since this is not the maximum assignable benefit for a dorsal spine disorder, the issued remains in active appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In October 2004, the Veteran impliedly claimed entitlement to increased ratings for her service-connected disabilities, including muscle strain of the dorsal spine then rated as 10 percent disabling, and muscle strain of the right buttock, then rated as noncompensably disabling. The RO denied these claims in October 2005. In February 2006, the Veteran and her representative sought to reopen her claim for service connection for PTSD, alleging that her stressor in service was an automobile accident, which she had not previously asserted. The RO in August 2006 denied reopening the claim. No SSOC was issued. However, the RO's written discussion of its action in February 2006 noted that the Veteran had a pending appeal on the issues of entitlement to an increased evaluation for muscle strain of the dorsal paraspinal muscles, and entitlement to service connection for a psychiatric disorder other than PTSD. In further action in September 2006, the RO increased the rating assigned for muscle strain of the dorsal spine from 10 percent to 20 percent disabling from March 10, 2006. An SSOC was issued addressing that issue in September 2006. In June 2007, the Board remanded the case on the issue shown as #1 (inadvertently omitting the other pending appellate question(s)) on the front page, solely to afford the Veteran a personal hearing. A Travel Board hearing was held before the undersigned Veterans Law Judge at the RO in November 2007, and the transcript is of record. The Board remanded the case in January 2008, and it now returns for further review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND The claims file reflects that the Appeals Management Center (AMC) sent the Veteran a notice letter to her address in Washington, DC, dated October 23, 2009, to inform her that the AMC had scheduled her for examinations in connection with her claim at the VA medical facility nearest her. However, the file reflects that, on the day before, October 22, 2009, the Veteran had contacted the AMC and informed them that she was moving to Atlanta the following week and accordingly would not be able to attend a VA examination scheduled in Washington, DC, but rather requested that VA examinations in furtherance of her claims be scheduled in Atlanta. She then provided her new address in Atlanta. The Board finds it entirely reasonable that the Veteran informed the AMC of her pending move and requested that examinations be scheduled near her new residence rather than in DC. It appears that the above items of correspondence "crossed in the mail," and the AMC was not aware of the impending move when it issued its letter to the Veteran. A VISTA record of scheduled examinations informs that scheduled examinations were cancelled by the Medical Administration Service, and that the appellant failed to appear for scheduled examinations. This apparent discrepancy is not explained in the record. There is no indication that examinations were scheduled for the Veteran in Atlanta following her move there. Rather, it appears that examinations were scheduled in Washington, DC, notwithstanding the Veteran's notification to the AMC of her pending move. By that VISTA record, the examinations appear to have been cancelled on November 18, 2009, based on failure to report. Any failure in this case rather appears to lie with the AMC, for failure to arrange for November 2009 examinations in Atlanta rather than in Washington, DC, having received appropriate notice from the Veteran in October 2009. It thus appears that 38 C.F.R. § 3.655 (2010), as applicable to cases where the Veteran fails to appear for a scheduled examination, is not applicable in this case. Rather, the Board has an affirmative duty to remand the case to afford appropriate opportunity for the examinations previously requested upon Board remand in January 2008. Failure to do so would constitute error on the part of the Board. Not strict, but rather substantial compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask her to inform of any additional pertinent treatments or examinations that are not reflected in the claims file, including any pertaining to her claimed PTSD or other psychiatric disorder, or to her claimed thoracic paraspinal muscles strain. With the Veteran's assistance, obtain any such identified records and associate them with the claims file. 2. The Veteran should be scheduled for a VA orthopedic examination to determine the nature and extent of her muscle strain of the paraspinal muscles of T8-T12. The claims folder must be made available to the examiner to review in conjunction with the examination. All appropriate tests deemed necessary should be accomplished. The examiner should provide a comprehensive report including the complete rationale for all conclusions made. a. The examiner should fully describe the degree of limitation of motion of the joint or joints affected by the muscle strain of the paraspinal muscles of T8-T12. Any limitation of motion should be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Complete range of motion studies should be performed to accurately ascertain the amount of limitation of motion present. b. The inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance should be described, and the degree of functional loss due to pain should also be addressed, pursuant to 38 C.F.R. § 4.40 (2010). c. The examiner should also address whether there is more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, pursuant to 38 C.F.R. § 4.45 (2010). d. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner must provide a complete explanation why this is so. 3. Thereafter, afford the Veteran a psychiatric examination, addressing the questions of nature and etiology of any current psychiatric disorder. All clinical findings should be reported in detail. The claims folder including a copy of this Remand and the prior Remand of January 2008 must be made available to the examiner prior to the examination and must be reviewed by the examiner in connection with the examination. All necessary tests should be conducted. The examiner should do the following: a. The examiner should review the multiple-volume claims file, including a copy of this Remand, the prior Remand of January 2008, and the Veteran's psychiatric history and findings as documented upon prior psychiatric treatments. The examiner should conduct an examination informed by the record, including as informed by current and past assertions of the Veteran, past independent evidence including as contradicting or confirming the Veteran's assertions, and the varied past psychiatric diagnoses as contained within the record. To the extent deemed credible, evidence to include lay statements may be used to support a diagnosis or an assessment of etiology as related to service. In this regard, the examiner should note that in determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). b. The examiner should then provide an evaluation of the nature and severity of any and all current psychiatric disorders of the Veteran. For each psychiatric disorder diagnosed, the examiner should opine whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the disorder was first manifested in service, was aggravated (permanently increased in severity) during service, or is otherwise causally related to service, OR, in the alternative, whether any such relationship between service and the diagnosed psychiatric disorder is unlikely (i.e., less than a 50-50 probability). c. For any psychosis present, the examiner should also opine whether the evidence supports the presence of the psychosis to a disabling degree within the first post-service year (the year beginning upon the Veteran's October 1983 separation from service). d. If the examiner diagnoses PTSD, the examiner must specify what stressors are relied upon to support that diagnosis, and which of these, if any, occurred during the Veteran's period of active service from February 1980 to October 1983. In this regard, the examiner may note the Veteran's past assertions of stressors. If the examiner diagnoses PTSD, the examiner must address whether that diagnosis is supported by any independently corroborated in-service stressors. In so doing, the examiner should weigh the Veteran's past history of statements, any mental dysfunction present, and questions of character or credibility presented in this case, and arrive at a conclusion as to whether, from a psychiatric perspective, it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that asserted stressors were in fact experienced in service, and if so whether the Veteran experienced a valid stressor-type response to those asserted stressors contributing to current PTSD. e. If the examiner diagnoses PTSD, the examiner must then opine as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran has PTSD which was caused or aggravated by in-service stressors; OR, alternatively, whether any such relationship to service is unlikely (i.e., less than a 50-50 probability). The examiner should provide a complete explanation for his/her opinions. f. The examiner is further advised that, under an amendment to VA regulations effective on July 13, 2010, "If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, 'fear of hostile military or terrorist activity' means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." Regarding this exception to the general requirement for verification or corroboration of stressors, the "fear of hostile military or terrorist activity" must involve an enemy of the United States (either a military enemy or a terrorist enemy), and not merely a perceived enemy of the Veteran. Thus, the Veteran's claimed stressors involving investigators or other military personnel pressuring her to provide statements against others involved in criminal acts, including acts involving illicit substances, would not fit under this exception because no enemy of the United States is implicated. Thus, if the examiner diagnoses PTSD, the examiner must provide findings regarding the Veteran's alleged stressors, and whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that they meet the new criteria, from a psychological perspective, in order for any uncorroborated stressor(s) to serve to support the PTSD claim. The examiner must then address whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran has PTSD due to an in-service stressor meeting these criteria, or otherwise due to a corroborated in-service stressor. g. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. h. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner must provide a complete explanation why this is so. 4. Thereafter, the RO should readjudicate the remanded issues. If the benefit sought on appeal for any of the appealed issues is not granted to the Veteran's satisfaction, she and her representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond thereto. 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. 2010). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of th1e Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).