Citation Nr: 1302017 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 05-27 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1973 to February 1977, and from March 1988 to November 1988. He had additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2005 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a psychiatric disorder (listed as a chronic depressive disorder). In March 2008 and August 2010, the Board, in pertinent part, remanded the issue of entitlement to service connection for a psychiatric disorder, for further development. In February 2012, the Board again remanded the issue of entitlement to service connection for a psychiatric disorder for further 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 This case was last remanded by the Board in February 2012, partly to schedule the Veteran for a VA psychiatric examination. The examiner was to identify all current psychiatric diagnoses and to opine as to whether any such psychiatric diagnoses were first manifested during the Veteran's active duty. The examiner was to specifically address the Veteran's in-service treatment for insomnia in August 1973 (with referral counseling); his competent subjective reports of excessive worry and depression on a medical history form at the time of a November 1976 separation examination; and to indicate whether such treatment for insomnia and reports of excessive worry and depression were at least as likely as not the first manifestation of any currently diagnosed psychiatric disorder. The examiner was to discuss the Veteran's repeated disciplinary problems, as noted in his service personnel records, in the context of whether they were evidence of the manifestation of any current psychiatric disorder. In the February 2012 remand, the Board specifically informed the examiner that, as a matter of law, no psychiatric disorder existed prior to the Veteran's periods of service. Pursuant to the February 2012 remand, the Veteran was afforded a VA psychiatric examination in March 2012. There was a notation that the Veteran's claims file was reviewed. The Veteran reported that he suffered severe childhood abuse and that he was raised by a collection of relatives. He stated that he ran away from home ten times and that he was finally placed in a "boy's home." He indicated that when he was five years old, his father injured him so badly that he was hospitalized. The Veteran maintained that he had nightmares about his father when he was a child, as well as for years after his childhood. The Veteran indicated that he joined the Army at age seventeen and that he served from "1971 to 1977" and from "1988 to 1995." He stated that his depression started after his first heart attack in the mid 1970s. The Veteran maintained that he knew that he was going to be discharged from the Army one way or another or he would have been killed. He stated that he called a civilian crisis line during his second enlistment. He related that he had no subsequent mental health treatment until 2004 following a call to a suicide hotline. The Veteran reported that he had suffered severe depression and suicidal thoughts since childhood. He stated that his flashbacks started after his second enlistment and that they involved his days in the military, as well the abuse he suffered as a child. The examiner indicated that the Veteran's PTSD symptoms included hypervigilance, poor sleep, nightmares and flashbacks of childhood abuse and his daughter's death, avoidance of crows, avoiding movies dealing with childhood abuse or death, anger problems, and an intense reaction to his father's death in 2004. The diagnosis was PTSD. The examiner reported that the Veteran did not have more than one psychiatric disorder. The examiner commented that the Veteran's PTSD was less likely than not caused by or a result of service. The examiner also indicated that the claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by any claimed in-service injury, event, or illness. The examiner reported that the Veteran denied that he had current depression. The examiner stated that the Veteran's history of discrepancies in reporting his medical and personal history had been discussed in previous reports and would not be elaborated upon in the present examination. The examiner stated that the main issue was where the Veteran's PTSD symptomatology came from. It was noted that the Veteran admitted to running away ten times and ending up in a "boy's home" and that he reported that he had nightmares and flashbacks about his childhood abuse. The examiner reported that the Veteran also reported continuing nightmares and flashbacks about his daughter's death during a period of time when he was not in the service. The examiner maintained that the trauma the Veteran reported in service was insufficient to meet criteria A for PTSD according to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). The examiner reported that the Veteran did not mention combat or being a prisoner of war (POW), but talked about a sergeant who picked on him during his second enlistment. It was noted that the Veteran stated that he eventually became so angry that he was violent toward the sergeant and spoke to his captain about the situation. The examiner related that the Veteran indicated that he also hit his captain in the head with the butt of an M-16. The examiner remarked that such issues did not qualify as stressors, but that the Veteran's childhood abuse certainly did. The examiner commented that the Veteran's PTSD did not appear to have manifested in service, as he was having nightmares and behavior problems for years about his father when he was a child and an adolescent. The examiner stated that the in-service signs and symptoms of excessive worry or depression, repeated disciplinary problems, were, therefore, not the first signs of any psychiatric disorder. The examiner stated that the Veteran's behavioral problems started before service. The examiner remarked that all of the conclusions came from the Veteran's statements. The VA examiner solely diagnosed PTSD and indicated that there were no other psychiatric diagnoses. The evidence of record, however, clearly demonstrates that the Veteran has been diagnosed with major depressive disorder on numerous occasions. In fact, a prior November VA psychiatric examination report, as well as a prior November 2009 VA psychiatric examination report with a May 2010 addendum, both diagnosed major depressive disorder and PTSD. Additionally, the VA examiner did not discuss the Veteran's treatment for insomnia (with referral for counseling) as requested pursuant to the April 2012 Board remand. The March 2012 VA examiner referred to the Veteran's report that he had no VA or other mental health treatment until 2004. However, a June 1997 VA treatment report related diagnoses of a major depressive disorder and PTSD. The VA examiner opined that the Veteran's PTSD did not appear to have first manifested in service, as he was having nightmares and behavior problems for years concerning his father when he was a child or adolescent. The examiner apparently based this conclusion on the Veteran's reported history alone, despite the fact that the examiner had already indicated the Veteran's reported history included discrepancies. The examiner indicated that the in-service signs and symptoms such as excessive worry or depression, as well as repeated disciplinary problems, were not the first signs of any mental disorder. However, the April 2012 Board remand specifically informed the examiner that, as a matter of law, no psychiatric disability existed prior to the Veteran's periods of service. The first evidence of any possible psychiatric disorder of record was pursuant to a November 1976 medical history form during service when the Veteran reported that he had depression and excessive worry, as well as nervous trouble. Therefore, the Board finds that another examination must be afforded the Veteran for his claim for service connection for a psychiatric disorder. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Stegall v. West, 11 Vet. App. 268, 271 (1998). Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for psychiatric problems since June 2010. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since June 2010 should be obtained. Document any unsuccessful efforts to obtain records, inform him of such, and advise him he may obtain and submit those records. 2. Schedule the Veteran for a VA examination by an appropriate medical professional, who has not yet examined the Veteran, to determine the nature and likely etiology of his claimed psychiatric disorder. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must be informed that, as a matter of law, no psychiatric disorder existed prior to service. The examiner must be informed that there is no evidence of record of any possible psychiatric problems prior to the Veteran's first period of service from January 1973 to February 1977. The examiner must further be informed that the Veteran did not serve in Vietnam or during Desert Storm. The examiner should clearly identify each psychiatric disability found to be present; a diagnosis of PTSD must be ruled in or excluded. Thereafter, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorder is etiologically related to the Veteran's period of service. The examiner must specifically address the Veteran's in-service treatment for insomnia in August 1973 (with referral for counseling), as well as his reports of depression or excessive worry, and nervous trouble, pursuant to a November 1976 medical history form, and to indicate whether the Veteran's treatment for insomnia (with counseling) as well as his reports of depression or excessive worry, and nervous trouble, were manifestations of any currently diagnosed psychiatric disorder. The Veteran's repeated disciplinary problems during service, as noted in the service personnel records, must also be discussed in the context of whether they were evidence of the manifestation of any current psychiatric disorder. If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based, to include whether the stressor is related to a fear of hostile military or terrorist activity. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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. 2010). ________________________________________________ RONALD W. SCHOLZ 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).