Citation Nr: 1302876 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-32 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969. He had service in Vietnam, and his awards and decorations include the Purple Heart Medal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2011 the Board found that new and material evidence had been received sufficient to reopen the previously denied claim and remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC for further development. After completing additional development, the AMC continued the denial of the claim (as reflected in a July 2012 supplemental statement of the case) and returned the matter to the Board for further appellate consideration. A review of Virtual VA reveals no records relevant to the claim on appeal. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is needed before it can decide the issue on appeal. The Veteran claims that he has PTSD or other psychiatric disorder due to the trauma he experienced while serving in Vietnam in 1968-1969. The Veteran is a recipient of the Purple Heart due to a shrapnel wound in the right arm he received in Vietnam. The Veteran's service treatment records show that he was treated with Librium in May 1968 for symptoms that included hyperventilation, agitation, and inability to move his legs and it was noted he would not speak. The record notes that the Veteran "needs mental health cl. visit." He was seen for similar complaints 2 days later. His commanding officer was told there were no physical problems causing the complaints. Administrative development was suggested. There are no other records of complaints or treatments for mental health disorders within the service treatment records or on his separation examination. The Veteran's VA treatment records show that he has a history since at least 2007, of complaints and treatment for various types of mental illness. In July 2007 the Veteran's wife reported to his physician that the appellant had been hearing voices, including talking to his dead father. In May 2008 the Veteran reported feeling easily aggravated and angry and that he continued to hear voices. In December 2008 the Veteran was diagnosed with PTSD by his VA psychiatrist, and in March 2009 the psychiatrist diagnosed the Veteran with major depressive disorder. In August 2009 the Veteran was again diagnosed with PTSD, specifically noted to be under the DSM-IV criteria, by his psychiatrist. In a January 2009 VA examination, the examiner found that the Veteran did not meet the criteria for PTSD but did diagnose the Veteran with anxiety disorder. The examiner stated that the anxiety disorder was due to the Veteran's stated trauma in Vietnam, with symptoms including nightmares relating to Vietnam and hypervigilance, and that there was no evidence of post-service intercurrent stressors. In June 2010 and August 2011 the Veteran was afforded two additional VA examinations that unfortunately are insufficient to allow the Board to decide the claim at issue. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant with a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. Id. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be considered adequate, the medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the June 2010 examination, the examiner noted that the Veteran had difficulty falling and staying asleep, felt "ready to explode," and had auditory and visual hallucinations. The examiner, however, found that the Veteran's descriptions of his hallucinations were "vague and inconsistent with typical accounts of hallucinations." The examiner made no mention of his wife's previous confirmations of her husband's hallucinations. The Veteran endorsed numerous symptoms of PTSD, but the examiner found that his test results indicated that he may be malingering or exaggerating his symptoms and could not provide an ultimate diagnosis. The examiner ultimately stated that "an opinion cannot be stated since a diagnosis is not confirmed," and provided no further explanation or discussion of the Veteran's symptoms or his previous medical history. Due to the inadequacy of this examination for rating purposes, the Board remanded the claim for a new psychiatric examination, held in August 2011. The examiner noted that the Veteran reported a number of PTSD symptoms, but found that he did not meet the criteria for a diagnosis of PTSD because he failed to manifest symptoms under Criterion C (persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness). The reasons given for the Veteran's failure to meet Criterion C were that he discussed Vietnam experiences with other veterans, his avoidance of trigger events and anhedonia were present but fell below the threshold required, his claim of having no friends was not credible because he had reported having one friend a year ago and had a friend in high school, and his sense of a foreshortened future was due not to psychiatric trauma, but to being a cancer survivor. The examiner stated that the Veteran denied any hallucinations and did not discuss previous treatment for hallucinations in the Veteran's record. The examiner also found that the Veteran was overendorsing symptoms and could not separate legitimate from feigned symptoms. The examiner heavily referenced the June 2010 examination, stating that it indicated that the Veteran had no diagnosis due to overendorsing symptoms. The examiner dismissed the Veteran's previous psychiatric VA treatment and diagnoses because they "did not use symptom validity testing." The examiner ultimately stated that the Veteran did not have a mental disorder that conforms to the DSM-IV criteria. In reviewing the reports, the Board finds that both the June 2010 and August 2011 examiners' opinions are inadequate for rating purposes, and another examination is necessary. Both examiners noted that the Veteran reported numerous symptoms of PTSD. However, the August 2011 found the Veteran's reports regarding Criterion C symptoms to be insufficient or not credible, although he provided very little rationale of why this was the case. Also, while both examiners discredited the reports of all symptoms generally due to the possibility that the Veteran may have been exaggerating his symptoms, they did not consider the symptoms that the Veteran has reported to his VA treatment providers over many years and did not discuss his numerous previous psychiatric diagnoses, including an August 2009 diagnosis of PTSD under the DSM-IV criteria. The August 2011 examiner stated only that his previous diagnoses did not use symptom validity testing and were therefore not relevant. The examiner provided no additional explanation of why these treatment records were not worth considering or how the symptoms that have been recorded and treated by numerous VA medical professionals over the years could relate to a possible psychiatric diagnosis for the Veteran. Furthermore, since the August 2011 examination, Social Security Administration records have been added to the record which include further statements by the Veteran and his wife regarding his psychiatric symptoms, many of which relate to Criterion C symptoms such as detachment and diminished interest in activities and should be considered when evaluating the Veteran's psychiatric condition and the credibility of his reported symptoms. Additionally, while the examiners found that the Veteran could have been overendorsing symptoms on the testing instrument, they did not provide any details of clinical observations upon which to base these conclusions or any details of which symptoms were likely to be genuine and which could have been exaggerated. The Board acknowledges that a medical professional may make a finding that a Veteran is overendorsing symptoms or that he is malingering. However, an examiner must provide a more detailed explanation for his conclusion than what was provided in these reports. Without more specific information from the examiners regarding the clinical observations made during the examinations, the Board finds that the unsupported statements that the Veteran is overendorsing symptoms are inadequate as they are not based on the examiners' medical expertise about the nature of the manifestation of psychiatric symptoms. Therefore, the explanations are inadequate regarding the apparent findings of malingering/overendorsing of symptoms as opposed to a finding of a mental disorder. Thus, the Board finds that a new VA examination must be conducted to determine the nature and etiology of any existing psychiatric disorder. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate his claim for service connection for a psychiatric disorder, to include PTSD. The examination should be conducted by a psychiatrist or psychologist other than the June 2010 and August 2011 examiners. The claims folder must be provided to the examiner as part of the examination, and the examiner must specify in the report that the claims file has been reviewed. After reviewing the record and examining the Veteran, the examiner should provide an opinion with respect to the following questions: The psychiatric examiner should offer an opinion as to whether the Veteran has any currently diagnosed psychiatric disorder. If no psychiatric disorder is found, the examiner should discuss whether the Veteran had any psychiatric disorder since August 2008, during the course of the current claim. The examiner should reconcile the various diagnoses in the medical evidence of record, including PTSD, major depressive disorder, anxiety disorder, and adjustment disorder, as well as the January 2009 VA examination findings, in which the examiner diagnosed the Veteran with anxiety disorder. The examiner should consider all symptoms reported by the Veteran, including claims of continuity of symptoms since service, those symptoms previously reported by the Veteran in VA treatment records, symptoms reported by the Veteran's wife, and symptoms reported in his May 1968 service treatment record. For every psychiatric diagnosis found, the examiner should state whether it is at least as likely as not (50 percent or more probability) that the Veteran's psychiatric disorder is a result of any incident in service, began to manifest during service, or is etiologically related to the Veteran's active duty service in any way, to include his combat experiences and traumatic injury in service, which have already been determined. In rendering this opinion, if the etiologies of the diagnosed disorders are attributed to multiple factors/events, the examiner should specify which symptoms/diagnoses are related to which factors/events. A complete rationale for all opinions provided must be given. If the examiner is unable to address any inquiry sought above, then he or she must fully explain why. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, that all new medical opinions adequately address the questions above, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. After completing the requested actions, the RO/AMC should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a supplemental statement of the case. An appropriate period of time shall be allowed for response. 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 D. LYON 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).