Citation Nr: 1301593 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-41 934 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant, K.M. ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2010 a formal RO hearing was held before a Decision Review Officer, and in December 2010 a videoconference Board hearing was held before the undersigned. Transcripts of both hearings are included in the claims file. In February 2011, the Board remanded the matter for additional development. 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 On review of the record, the Board finds that this matter must again be remanded for evidentiary development. In the February 2011 remand, the Board instructed that the RO collect all stressor information related to hostile military activity as reported by the Veteran throughout the claims file and determine if there is sufficient information to submit for a search by the Joint Service Records Research Center (JSRRC). The RO was to request and obtain from the Veteran any additional stressor details needed to enable such a search. However, the claims file includes a July 2011 memorandum indicating that, pursuant to the amended regulations regarding the evidence necessary to corroborate a stressor relating to hostile military activity under 38 C.F.R. § 3.304(f), a) the Veteran has alleged an in-service stressor related to fear of hostile military activity, b) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, and c) his lay testimony alone therefore establishes the occurrence of the claimed in-service stressor. The remaining remand instructions pertaining to stressor verification are moot. The February 2011 remand next instructed that copies of any Social Security Administration (SSA) decision regarding disability benefits for the Veteran, and any records underlying such decision, must be secured. Such records were obtained in May 2011. This instruction is fulfilled. Additionally, the Board noted on remand that, although the Veteran had previously been afforded a VA psychiatric examination, the May 2010 VA examiner deferred providing an Axis I diagnosis in accordance with the DSM-IV, stating that results from an array of PTSD tests indicated that the Veteran over-reported his symptoms. The matter was remanded for a new VA PTSD examination in light of the record and amended PTSD regulations, and to obtain nexus opinions regarding all other diagnosed psychiatric disabilities. The Veteran was afforded an August 2011 VA PTSD examination, in which the examiner stated that the Veteran had, in two VA examinations, provided substantial information that would likely support a diagnosis of PTSD, however his performance on objective measures of psychological symptomatology suggested an over-reporting of psychiatric symptoms. The examiner noted that, when objective measures suggest the presence of symptom exaggeration, it complicates diagnosis. The examiner opined that no diagnosis could be offered at that time owing to the Veteran's significant exaggeration; the examiner noted that this was not to say the Veteran does not experience significant psychiatric disturbance. The examiner noted that the Veteran may be experiencing significant PTSD symptoms, as has been evident by other providers as to his experiences, yet the degree to which the symptoms are present and the impact that they have on the Veteran's life could not be determined by the examiner. The examiner made no comment at all regarding any other psychiatric diagnoses and whether they are more or less likely than not related to the Veteran's reported active service combat stressors. The Board finds that the August 2011 VA examination is inadequate because it is incomplete and nonresponsive to questions posed by the Board, and that under governing case law a medical opinion that avoids responding to a question posed (without adequately explaining why an opinion is not possible) is in essence a non-opinion, and therefore has no probative value. Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination, an adequate one must be provided or the claimant must be notified why an adequate exam will not or cannot be provided). The matter must be remanded again to obtain the requested opinions. In remanding the matter for a new VA examination and opinion, the Board notes the April 2012 private medical opinion from psychologist Dr. Connolly (submitted by the Veteran's representative in August 2012), who opined that within reasonable psychological certainty, the Veteran's reported in-service stressor experiences have caused him psychological, emotional, and social symptoms. Dr. Connolly diagnosed chronic PTSD and recurrent severe major depressive disorder based on an interview of the Veteran, review of the claims file, and communication with the Veteran's treating Vet Center therapist. Dr. Connolly opined that the Veteran's PTSD is directly connected to his combat experiences while serving in Vietnam, and his over-reporting of symptoms relates to the intensity of his symptoms, rather than to any question as to the presence of these symptoms. Finally, the Board instructed on remand that the matter of service connection for psychiatric disability other than PTSD be developed and adjudicated. The Veteran was issued VCAA-compliant notice in a March 2011 letter. However, an August 2011 supplemental statement of the case readjudicated the matter of service connection for PTSD only, without any discussion of other psychiatric disabilities that have been diagnosed. This instruction is therefore not fulfilled. It is well-established in caselaw that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a psychiatrist or psychologist. The claims file and a copy of this remand must be available for review. The examiner is to interview the Veteran, perform a mental status examination and any appropriate testing, and state all diagnosed psychiatric disabilities. The examiner must opine as to whether the conceded active service combat stressors involving fear of hostile military activity are adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressors. The examiner must explain any conflicting opinions with those previously submitted by Dr. Connolly (April 2012) and other providers in support of the claim. For each other diagnosed psychiatric disability, the examiner must opine whether it is at least as likely as not (more than a 50 percent possibility) related to the conceded active service combat stressors involving fear of hostile military activity. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claim on appeal. The readjudication must include consideration of the alternative psychiatric diagnoses raised by the record in compliance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board, if in order, for further appellate consideration. 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 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). _________________________________________________ MICHAEL MARTIN 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).