Citation Nr: 1237120 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 09-10 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from April 1970 to October 1971, and his awards and decorations include a Combat Infantryman Badge (CIB) and a Bronze Star Medal (BSM). This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that the RO originally adjudicated the issue on appeal as one for entitlement to service connection for PTSD. However, the medical evidence of record reveals diagnoses of acquired psychiatric disorders, including that of PTSD, depression, anxiety, and alcohol abuse. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Therefore, the issue on appeal has been recharacterized as stated above to encompass all currently diagnosed acquired psychiatric disorders, including but not limited to PTSD. The Board further notes that the appellant requested a hearing before the Board in his March 2009 substantive appeal. However, he withdrew his hearing request in an April 2009 written statement. See 38 C.F.R. § 20.704(e) (2011). Following a review of the appellant's claim, the Board, in June 2010, remanded the claim to the RO via the Appeals Management Center (AMC), in Washington, DC. The purpose of the remand was to obtain any possible relevant treatment records and to have the appellant undergo a VA psychiatric examination in order to determine whether the appellant was suffering from a mental disorder related to service. An examination was performed and the claim was returned to the Board for review. Upon completion of the review, the Board concluded that the evidence that was needed by the Board in order to adjudicate the appellant's claim was not obtained. As such, the claim was again remanded to the AMC so that another examination of the appellant could be obtained. Once again, the claim was returned to the Board. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is once again necessary before the appellant's claim of service connection for an acquired psychiatric disability other than PTSD, to include depression and anxiety, can be adjudicated. As indicated above, the Board has remanded the claim twice before so that it could obtain medical evidence concerning the existence and etiology of any found psychiatric disorder. When the Board remanded the claim in December 2011, it specifically gave the following tasking to the RO/AMC: 1. Make appropriate requests to obtain any outstanding VA and private treatment records, specifically to include VA treatment records dated June 2010 forward, as well as any further treatment records that may be identified by the Veteran upon remand. All requests and all responses, including negative responses, must be documented in the claims file, and all records received should be associated with the claims file. If any such records are not obtained after appropriate requests have been made, notify the Veteran and allow him the opportunity to provide such records, in accordance with 38 C.F.R. § 3.159(c) &(e). 2. After completing the above-described development, schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorders, including a depressive disorder or anxiety disorder. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to identify each of the Veteran's currently diagnosed acquired psychiatric disorders. The examiner is further requested to state whether it is at least as likely as not (probability of 50 percent or more) that any such disorder, including depressive disorder and anxiety disorder, was incurred or aggravated as a result of active service, including the Veteran's reported stressors while serving in Vietnam and the evidence that he participated in combat in Vietnam as evidenced by his receipt of the Combat Infantryman Badge. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of all lay and medical evidence of record. The examiner should comment on all other opinions of record as to the Veteran's diagnoses, as well as the etiology of such disorders, to include the opinions of the other two VA examiners and the March 2008 and April 2009 private opinions. See Stegall, supra. The record reflects that the Board remanded this claim to the AMC in December 2011. Following that action, the AMC sent a letter to the appellant asking that he identify any private treatment he may have received since June 2010 for any psychiatric disorder. While the appellant failed to respond to the AMC request, the record also shows that the AMC did not seek to supplement the claims folder with VA treatment records. That is, instead of looking to see via the CAPRI system as to whether the appellant had received treatment at any VA-related health care facilities in Puerto Rico, the AMC did nothing. Hence, if the appellant was receiving health care at a VA facility from June 2010 forward, when the claim was sent to an examiner so that he/she would have a complete record of the appellant's health care treatment prior to examining the appellant, the examiner received a possibly deficient and defective file. Thus, when the examiner stated that she had reviewed the appellant's complete claims folder, such a statement was based on a faulty assumption that all VA records had been requested and included in the claims folder. The Board further observes that in conjunction with the Board's remand of December 2011, the appellant underwent a VA Psychiatric Examination in January 2012. The examination report was provided in a Disability Benefits Questionnaire (DBQ). Although the Board recognizes that DBQ's are a work in progress for VHA, the December 2011 DBQ in this case is extremely difficult to read or interpret for purposes of VA service connection. For example, it appears that the VA examiner did not answer the questions asked of him regarding the nature and etiology of the appellant's acquired psychiatric disability, to include PTSD, depression, and anxiety, in the DBQ. The examiner failed to recognize the appellant's Combat Infantryman Badge as a predicate to a recognized stressor. Moreover, the examiner was very inconclusive when she discussed previous provisional diagnoses of PTSD, anxiety, and depression, and their relationship to the appellant's service. Also, she did not identify the disorders she was referring to when she provided her limited rationale. Finally, because it is possible that his other diagnosed psychiatric disorders, depressive disorder and anxiety disorder, are related to his service stressors, the examiner had a duty to provide an adequate opinion and rationale considering those theories of entitlement. This was not done by the examiner. The Board observes that VA's duty to assist includes providing veterans with examinations where necessary. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011). The United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that, when VA undertakes to provide a veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Having reviewed the most recent VA examination of the appellant, along with the possibility that the examiner did not have the complete medical file of the appellant before her when she examined the appellant, the Board finds that this evidence is inadequate for purposes of adjudicating the appellant's service connection claim. See 38 C.F.R. § 4.2 (2011). Given the foregoing, the Board finds that another remand is required so that additional development, the obtaining of records and a complete examination of the appellant, must occur. In order to avoid another remand on this claim, the Board requests that the DBQ format not be used at this examination. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the AMC/RO for the following development: 1. The appellant should be provided the notice required under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011) and 38 C.F.R. § 3.159(b) (2012), for the issue currently on appeal. Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. This notice should include the amended provisions of 38 C.F.R. § 3.304(f) pertaining to inservice stressors for a claim for entitlement to service connection for PTSD. All information obtained from the appellant should be included in the claims folder for future review. 2. The AMC should contact the appellant and request that he identify all sources of mental health care treatment received since January 2010, and to furnish signed authorizations for release to the VA for private medical records in connection with each non-VA source identified for which all relevant records are not already in the claims folder. The appellant should be asked where he received treatment through the VA health care system and provide an approximate date as to when he began receiving care at each facility. Even if the appellant failed to respond to this request, copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. If requests for any private treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. See 38 C.F.R. § 3.159(e) (2012). 3. The AMC should conduct any additional development that may be necessary as to the appellant's reported inservice stressors, considering the amended provisions of 38 C.F.R. § 3.304 (f), effective July 13, 2010. Any information obtained should be included in the claims folder for review. If no additional development is necessary, the AMC should note as such in the claims folder. 4. After Items 1 through 3 have been accomplished, the AMC should then schedule the appellant for a psychiatric examination in order to determine whether the appellant now suffers from a psychiatric disorder, to include but not limited to depression, anxiety, and posttraumatic stress disorder (PTSD). The examination should not be accomplished by the examiner who performed the VA Psychiatric Examination on January 5, 2012. The examiner should be given a copy of this remand and the appellant's entire claims folder, and the examiner should be informed of which, if any, in-service stressors have been verified. The examiner should be requested to review the appellant's claims folder and state that this has been accomplished. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Please note that a Disability Benefits Questionnaire (DBQ) should not be used for this examination report. If and only if it is determined that the appellant is now suffering from PTSD, the examiner should state whether it is at least as likely as not that such disorder is the result of any verified inservice stressors. Further, if there are no verified stressors, the examiner should state whether it is at least as likely as not that the appellant's PTSD symptoms are related to a fear of hostile military or terrorist activity, consistent with the types, places, and circumstances of his service. The examiner should express an opinion as to whether any found psychiatric disorder, not to include PTSD, at least as likely as not began in or is related to the appellant's military service or any incidents therein, to include any verified stressors. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 favour of that conclusion as it is to find against it. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. If further testing or examination by other specialists is determined to be warranted in order to evaluate the condition at issue, such testing or examination is to be accomplished prior to completion of the examination report. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As stated, the medical examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. In the doctor's report, the examiner must specifically discuss the appellant's contentions along with previous assessments that have hypothesized that the appellant might be suffering from a psychiatric disorder related to or caused by the appellant's Vietnam service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Additionally, if the examiner concludes that the appellant's claimed psychiatric disorder is not service-related, the examiner must explain in detail the reasoning behind this determination. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. Finally, it is requested that the results be typed and included in the claims folder for review. 5. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the appropriate (incomplete) report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 6. Thereafter, the AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Before the claim is returned to the Board, the AMC should ensure that all documents contained in the claims folder have been translated from Spanish to American English. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2011). _________________________________________________ C. TRUEBA 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) (2012).