Citation Nr: 1125695 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 04-09 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disability, to include bipolar disorder and post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to February 1982, and from November 1982 to March 1988. This matter first came before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which reopened the Veteran's claim for service connection for bipolar disorder and denied the claim on the merits. The Board determined in November 2006 that new and material evidence had been received to reopen the previously denied claim. The claim was then remanded at that time so that additional development of the evidence could be conducted. The claim was again remanded by the Board in November 2009, so that certain due process concerns could be addressed, as well as so additional development of the evidence could be conducted. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted, the Board most recently remanded this case in November 2009. The November 2009 remand includes a detailed factual account of the instant claim. As noted in the November 2009 remand, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) considered a case in which the Board had denied a claim for service connection for PTSD where the Veteran specifically requested service connection for PTSD, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder. The Board narrowly construed the claim and denied upon the absence of a current diagnosis. The Court, in vacating the Board's decision, pointed out that a claimant cannot be held to a "hypothesized diagnosis -- one he is incompetent to render" when determining what his actual claim may be. The Court further noted that the Board should have considered alternative current conditions within the scope of the filed claim. Id. The Board pointed out that while the fact pattern in this case was dissimilar to that in Clemons, it found that Clemons was nevertheless somewhat applicable to this case. Notably, while this claim was shown to have been adjudicated by the RO and certified to the Board as a claim for service connection for bipolar disorder, it was noted in the November 2009 remand that the Veteran had also been diagnosed with adjustment disorder (with mixed emotional features), major depression, and PTSD. As indicated under Clemons, these other diagnoses are to be considered as part of the underlying claim. To date, noted the Board in November 2009, the RO had not adjudicated this claim so broadly as to incorporate psychiatric diagnoses other than bipolar disorder. The RO had also not provided adequate notification addressing what was needed for a claim incorporating such diagnoses. This is significant because the statutory and regulatory provisions addressing PTSD claims, as contained in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), are different from the provisions addressing other service connection claims. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Review of the record fails to show that that the Veteran has been provided adequate notice of the statutory and regulatory provisions addressing PTSD claims, as contained in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f). On remand, this should be accomplished. As part of a June 2009 VA psychiatric examination the Veteran provided a history of an in-service sexual assault. The examiner, in providing a diagnosis of PTSD, commented that the Veteran's in-service sexual assaults were the cause of his PTSD, diagnosed as adjustment disorder in service. Additionally, in its November 2009 remand, in an effort to assist the Veteran in substantiating his claim of an in-service sexual assault, the following development was ordered to be completed: The Veteran should be afforded the opportunity to identify potential alternative sources of information to verify the claimed sexual assault as set forth in M21-1, part III, 5.14(c). He should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. Unfortunately, the Veteran never responded to requests seeking to assist him in this evidentiary development. The November 2009 remand nevertheless ordered that the following development be completed: 2. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s). In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the Veteran's allegations of stressors occurring, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors and if so should decide whether this evidence needs the interpretation by a clinician. See M21-1, Part III, 5.14c (9). In this regard, the RO should comment on the January 1988 Physical Evaluation Board report, which found that the Veteran was unfit for military service, in part to his having been diagnosed with adjustment disorder with history of depression. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor(s) in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. (emphasis added). Review of a subsequently-dated February 2011 Memorandum issued by the AMC, and entitled "Formal Finding of lack of information required to corroborate stressors associated With a claim for service connection for Post Traumatic Stress Disorder (PTSD)," shows that the ordered development, namely "the RO must make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s)" was in no way addressed as part of the February 2011 AMC Memorandum. Also, the AMC failed to address the instruction regarding the making a finding as to whether "any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors." The AMC also did not "comment on the January 1988 Physical Evaluation Board report, which found that the Veteran was unfit for military service, in part to his having been diagnosed with adjustment disorder with history of depression." To this, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. As noted above, as the cited November 2009 remand instructions were clearly not sufficiently complied with, remand is again necessary. The Board also points out that, in accordance with the November 2009 remand, the Veteran was to be afforded a VA psychiatric examination. The remand ordered, in pertinent part, the following development: 3. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. If feasible, this examination should be conducted by a psychiatrist who has not previously examined, evaluated or treated the Veteran. The examiner should review the entire claims folder, to include all of the service treatment records, and all post service VA medical records, to include the examination reports dated in December 1988, January 2002, and June 2009. A copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). Any diagnosis must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multi-axial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether it is at least as likely as not that the current symptomatology is linked to one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder(s) as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of bipolar disorder, major depression, and PTSD. The examiner should also provide an opinion as to whether it is at least as likely as not that any psychiatric disorders diagnosed in the course of the examination, other than PTSD, is/are etiologically related to the Veteran's period of active service. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The Veteran was afforded a VA psychiatric examination in March 2011. Review of the examination report shows that diagnoses of PTSD and bipolar disorder with depression and psychotic features were supplied. The examiner added that "it was as likely as not" that the PTSD symptoms are secondary to events occurring in the Marine Corps at Camp Pendleton, California. He went on to opine that the "traumas happening during [the Veteran's] time at this camp appear to be at least as likely as not sufficient to have led to the ptsd symptoms described as well as the cronic [sic] after affects." However, as the above-discussed development sought to be accomplished as part of the Board's November 2009 concerning the substantiation of his alleged in-service stressors was not accomplished, these examination findings are not sufficient for adjudication purposes. The examiner also failed to provide an opinion as to whether it was at least as likely as not that any psychiatric disorders diagnosed in the course of the examination [bipolar disorder with depression and psychotic features], other than PTSD, are etiologically related to the Veteran's period of active service. As such, given that the VA examiner failed to directly address and respond to all the questions presented by the Board in November 2009, additional action is required. Stegall. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send a letter to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal, now characterized as service connection for a psychiatric disorder, to include bipolar disorder and PTSD. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim, to include the terms of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should again be afforded the opportunity to identify potential alternative sources of information to verify the claimed sexual assault as set forth in M21-1, part III, 5.14(c). He should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. 2. Following the above, the RO/AMC must make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s). This development need take place even if the Veteran fails to respond to the above-cited opportunity to identify potential alternative sources of information to verify the claimed sexual assault. In rendering this determination, the attention of the RO/AMC is directed to the pertinent law. See November 2009 Board remand. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the Veteran's allegations of stressors occurring, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors and if so should decide whether this evidence needs the interpretation by a clinician. See M21-1, Part III, 5.14c (9). In this regard, the RO/AMC should comment on the January 1988 Physical Evaluation Board report, which found that the Veteran was unfit for military service, in part to his having been diagnosed with adjustment disorder with history of depression. If the RO/AMC determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor(s) in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 3. Thereafter, the RO/AMC should forward the claims folder to the VA clinical psychologist who rendered the March 2011 examination report with opinion. After reviewing the claim folder, to include the March 2011 report findings, the physician must address the following: a. As to the diagnosed PTSD, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether it is at least as likely as not that the current symptomatology is linked to one or more of the in-service stressors found to be substantiated by the record and found sufficient to produce PTSD. b. In addition, the examiner must comment on the approximate date of onset and etiology of the diagnosed bipolar disorder with depression and psychotic features, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his review of all of the evidence of record, particularly with respect to prior diagnoses of bipolar disorder, major depression, and PTSD. The examiner should also provide an opinion as to whether it is at least as likely as not that the diagnosed bipolar disorder with depression and psychotic features is etiologically related to the Veteran's period of active service. c. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale should be given for all opinions and conclusions expressed in a typewritten addendum report. 4. In the event that the clinical psychologist who completed the March 2011 VA psychiatric examination report is unavailable, the RO/AMC should afford the Veteran a VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. If feasible, this examination should be conducted by a psychiatrist who has not previously examined, evaluated or treated the Veteran. The examiner should review the entire claims folder, to include all of the service treatment records, and all post service VA medical records, to include the examination reports dated in December 1988, January 2002, June 2009, and March 2011. A copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). Any diagnosis must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multi-axial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether it is at least as likely as not that the current symptomatology is linked to one or more of the in-service stressors found to be substantiated by the record and found sufficient to produce PTSD. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder(s) as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of bipolar disorder, major depression, and PTSD. The examiner should also provide an opinion as to whether it is at least as likely as not that any psychiatric disorders diagnosed in the course of the examination, other than PTSD, is/are etiologically related to the Veteran's period of active service. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 5. The Veteran is hereby notified that it is his responsibility to report for a VA examination, if scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO/AMC must implement corrective procedures. 7. Thereafter, and following any other indicated development, the RO should readjudicate the appealed issue in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2010).