Citation Nr: 1301862 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 06-13 316 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and C.R. ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1965 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Seattle, Washington VA Regional Office. In May 2008, a Travel Board hearing was held before a Veterans Law Judge who is no longer with the Board; a transcript of that hearing is included in the claims file. In January 2009, the Board remanded the matter for additional development. In May 2011, the Veteran was notified that the Veterans Law Judge before whom he had testified was no longer with the Board, and he opted to appear before a different Veterans Law Judge. In July 2011, the Board remanded the matter to schedule the Veteran for a videoconference Board hearing; he failed to appear for his scheduled October 2011 hearing. In a November 2011 statement, the Veteran's representative stated that the claims file was sent to the wrong location and a hearing was never scheduled, but the Veteran wished to waive his request for a new hearing regardless. In November 2011, the Board remanded the matter for further evidentiary 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 on his part is required. REMAND On review of the record, the Board finds that this matter must again be remanded for evidentiary development. 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). In the November 2011 remand, the Board instructed 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 December 2011 letter, and a November 2012 supplemental statement of the case adjudicated the matter as characterized above. This instruction is fulfilled. The November 2011 remand also instructed that records of any VA mental health treatment the Veteran may have received since October 2007 must be secured. Treatment records from October 2007 through August 2012 were added to Virtual VA (VA's electronic records system). This instruction is fulfilled. The Board noted on remand that an October 2007 treatment summary letter indicated the Veteran was receiving Social Security Administration (SSA) disability benefits. The Board found, on review of the claims file, that copies of any SSA decision had not been secured, nor any records upon which such decision may have been based. In July 2012, pursuant to a records request, an SSA response indicated that, after exhaustive and comprehensive searches, no medical records could be located for the Veteran. A September 2012 VA memorandum included a Formal Finding on the unavailability of SSA disability records. This instruction is fulfilled. Additionally, the Board noted on remand that, although the Veteran had been afforded a VA psychiatric examination to determine if his cited stressors are sufficient to warrant a diagnosis of PTSD based on them, the January 2009 VA examination did not offer any opinions regarding the etiology of any other psychiatric disorders, including any nexus to service. Accordingly, the matter was remanded for a new VA examination. The Veteran was afforded a January 2012 VA PTSD examination, in which the diagnoses included PTSD and depressive disorder, not otherwise specified. The January 2012 examiner gave a nexus opinion relating the Veteran's PTSD to an unverified in-service stressor but offered no rationale in support of this opinion. The January 2012 examiner did not state any opinion at all regarding the etiology of the diagnosed depression. The matter was returned to the VA Medical Center to address this last omission. In an October 2012 addendum opinion be a different provider, such provider erroneously identified the question posed as whether the Veteran's depression not otherwise specified is "due to and caused by the PTSD". That addendum opinion-provider (a psychiatrist who was following up on the case based on written records as the original examiner was no longer with VA) opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. The reviewing psychiatrist explained that "the Veteran's chronic dysfunctional lifestyle and personality have led to depression at this time in his life due to his chronic failure to meet age appropriate developmental milestones such as maintaining work, relationships, and building up his resources. The events he is claiming as causing PTSD are minimal at best, and indirect. Several times during the interview he vacillated on providing factual information, in fact, the examiner had to ask him to leave the office to calm down because he at first refused to discuss the events from over 40 years ago that he was claiming as traumatic stressors. This indicates he was concealing information, not that he was traumatized by anything. His difficulty in providing facts on such remote events, where he was only indirectly involved, is more proximately an Axis II problem, such as antisocial personality disorder, and not a symptom of PTSD." The October 2012 VA opinion-provider indicated that the Veteran's history is not consistent with someone who is experiencing PTSD, rather "it is consistent with illegal and irresponsible actions consistent with antisocial personality disorder. His current depression is LESS likely than not related to PTSD, it is more likely than not related to antisocial personality disorder and life losses of stabilizing influences due to Axis II issues." The psychiatrist added that she would have included a diagnosis of antisocial personality disorder in the original evaluation and would have rated the Veteran at a lower recommended percentage of overall disability because of his enduring antisocial patterns of behavior and substance abuse while claiming PTSD based on indirect exposures in the military. The Board finds that the January 2012 VA examination and October 2012 addendum opinion are inadequate because they are 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. Even cumulatively, the January and October 2012 VA examination/opinion reports are therefore not compliant with the remand instructions. 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). Given the absence of rationale for the January 2012 opinion, and that the October 2012 opinion responds to a question other than that posed, the matter must be remanded again to obtain the opinions sought. Finally, the Board also noted on remand that, on April 2008 private psychiatric evaluation, that provider's review of the evidence included records "reviewed in preparation for a January 31, 2007 IME undertaken at the request of [the Veteran's] attorney in the context of a Worker's Compensation claim". The cited evidence included a December 2005 private psychiatric examination by Dr. Peck and a private September 2006 examination by psychiatrist Dr. Miller. A review of the claims file found no treatment records in evidence from either physician, and that the RO did not appear to have attempted to obtain them. The Board found that such treatment/examination records for a psychiatric disability would be pertinent, perhaps critical, evidence in the matter at hand, and therefore must be sought. In a December 2011 letter, the RO asked the Veteran to identify the providers of all treatment/evaluation he has received for psychiatric disability since his separation from service (records of which are not already associated with the claims file). In an August 2012 letter, the RO asked the Veteran to complete a VA Form 21-4142 authorization and release to obtain records specifically from Drs. Peck and Miller, or to submit the records himself. He did not respond to either letter. A full year has not yet passed since the August 2012 letter. As the matter must be remanded regardless, another attempt to obtain these records is indicated. The Veteran is once again advised that under 38 C.F.R. § 3.158(a), where evidence (to include identifying information and releases for VA to obtain private records) requested in connection with a claim for VA benefits is not received within a year of the request, the claim is to be considered abandoned. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the providers of all evaluations and treatment he has received for psychiatric disability since his separation from service (records of which are not already associated with the claims file), and to submit authorizations for release to VA of any such private records, specifically including records from Drs. Peck and Miller. He must be afforded the remainder of the one year period since the prior (August 2012) request for such to respond. 2. The RO should secure copies of the complete clinical records of the Veteran's treatment/evaluation from the identified sources, and any (and all) pertinent VA treatment records since August 2012. The RO should review the records received, and arrange for any further development suggested by the information therein. 3. When (and only if-as an examination based on an incomplete record would be inadequate) the development sought above is completed, the RO should arrange for a psychiatric examination of the Veteran to determine the nature and likely etiology of his psychiatric disability(ies). [If the Veteran does not provide the releases for private records sought, the claim must be further processed (in August 2013) under 38 C.F.R. § 3.158(a).] The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Regarding stressor events in service, the examiner must be advised of the cited stressors, though they are unverified as described by the Veteran. Based on examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) each of the Veteran's psychiatric disabilities. (b) Specifically, does the Veteran warrant a diagnosis of PTSD? Please discuss sufficiency of the stressors described and the symptoms that support any such diagnosis. (c) As to each and every psychiatric diagnosis other than PTSD, please indicate whether such disability is at least as likely as not (a 50% or better probability) related to the Veteran's military service/documented events therein. The examiner must explain the rationale for all opinions. 4. The RO should then readjudicate the matter on appeal, to encompass all psychiatric diagnoses shown in accordance with Clemons. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then, if in order, be returned to the Board. 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 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). _________________________________________________ George R. Senyk 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).