Citation Nr: 1300925 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-06 561A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to December 1988 and from May 1989 to April 1992. She had service in Kuwait from January to May 1991. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied the Veteran's petition to reopen a claim for service connection for a psychiatric disability described as a mental condition/depression, previously described as depression/nerves and depression due to an undiagnosed illness. In July 2008, the Veteran testified before a hearing officer at the RO and a transcript of that hearing has been associated with her claims folder. In her March 2008 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). A hearing was scheduled in October 2011. The Veteran was notified of the date and time of the hearing; however she failed to appear for the scheduled Board hearing. She has not explained her absence or requested to reschedule the hearing. Thus, her appeal will be processed as if she withdrew the hearing request. 38 C.F.R. § 20.704(d) (2011). The Veteran's claim for service connection for a psychiatric disability was originally denied in a final January 1998 rating decision. New and material evidence would ordinarily be required to reopen the claim for service connection for a psychiatric disability. 38 U.S.C.A. § 5108(West 2002). However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will adjudicate the claim without regard to the prior decision. 38 C.F.R. § 3.156(c) (1). In May 2012 the Board noted that relevant service treatment and personnel records had been added to the record since the January 1998 decision and were not considered. Therefore, the Board determined to adjudicate the claim for service connection for a psychiatric disability on a de novo basis without the need for new and material evidence. The Board recharacterized the issue as shown on the title page and remanded the case for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be advised if further action is required on his part. REMAND In its May 2012 remand the Board sought to afford the Veteran a new VA psychiatric examination in order to obtain an adequate opinion as to whether any current psychiatric disability was related to service. The remand also required the RO to contact the JSRRC to attempt to verify the Veteran's claimed in-service stressor. This was accomplished and the Veteran's claimed in-service stressors were confirmed. In the August 2012 VA examination report, the examiner noted that the Veteran arrived approximately 30 minutes late for her scheduled appointment. As a result, the examiner was unable to collect full background information from the Veteran during her interview. The examiner noted that a more complete background was taken from the prior November 2009 VA examination. The examiner noted that she had no more than twenty minutes available to review the claims file; but that an hour would be necessary to adequately review the claims file. In addition 30 minutes would have been needed for a proper clinical interview and for testing. An abbreviated interview was conducted as a result of the Veteran's late arrival. A half hour was also required to write the report. The examiner conducting the August 2012 VA psychiatric examination found that the Veteran symptoms did not support a PTSD diagnosis. She concluded that the proper diagnoses were depressed mood and chronic sleep impairment. The examiner opined that the conditions were less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, events, or illness. The rationale was that the Veteran's current symptoms were best accounted for by her history of polysubstance abuse (now in remission) and the recent death of her mother (two months ago) whom she continued to grieve. The claims folder; however, contains evidence that the Veteran's psychiatric disability existed long before her mother's death and that her substance abuse might be associated with the psychiatric disability. For instance, an October 2005 hospital discharge summary from Baptist Hospital shows a diagnosis of major depressive disorder with cocaine abuse. The discharge summary was associated with the claims folder after the VA examination. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following action: 1. Return the claims file (including any relevant records in virtual VA) to the VA examiner who conducted the August 2012 VA psychiatric examination to allow the examiner the opportunity to fully review the claims file and prepare an addendum medical opinion. If she is unavailable, contact another qualified examiner for an opinion regarding the Veteran's mental disorders. The claims folder, including this remand, must be sent to the August 2012 VA examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. If an additional VA psychiatric examination is required, one should be afforded the Veteran. After adequate review of the claims file (and additional VA psychiatric examination if required), the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's current psychiatric disabilities (any psychiatric disability diagnosed since April 2005) had their onset in service, are related to the Veteran's reported stressors in service, are related to the Veteran's reported psychiatric symptoms in service, or are otherwise the result of a disease or injury in service. The examiner should also opine as to whether the Veteran's substance abuse results from self medication for a psychiatric disability. The examiner should consider the Veteran's reports on VA examinations in January 1997 that she had either had psychiatric problems since service or that the problems began in 1993 and were related to nervousness about events in the Gulf War. The examiner should also note that certain of the Veteran's in-service stressors (such as being behind a column that was attacked by friendly fire) have been confirmed. If the examiner finds that the Veteran meets the criteria for a diagnosis of PTSD, the examiner should specify the stressors supporting the diagnosis. In formulating the above opinions, the examiner must acknowledge and comment on the significance, if any, of the Veteran's reported stressors in service, her reported psychiatric symptoms in service, and all previous psychiatric diagnoses provided since service, including PTSD (noted in Baptist Hospital nursing notes in October 2005). If PTSD is diagnosed, the examiner should opine if that disorder is based on a stressor related to her fear of hostile military action. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for psychiatric problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report in-service stressors, her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner should specifically comment on the reports of depression, anxiety, and teeth grinding in service. The examiner must provide reasons for this opinion. If, this examiner is no longer available then the necessary opinions should be obtained from another qualified mental health or medical professional. If further examination is recommended, this should be undertaken. 2. Thereafter, the AOJ should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. If any requested development is not complete, implement corrective procedures. 4. If the claim on appeal remains denied, issue a supplemental statement of the case, then return this appeal to the Board, if otherwise in order. The Veteran 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). She is advised that she has a responsibility o cooperate with the development of her claim, including appearing on time for VA examinations. 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. 2012). ____________________________________________ Mark D. Hindin 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).