Citation Nr: 1304101 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-16 496 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Jurisdiction rests with the RO in Portland, Oregon, from which the Veteran's appeal was certified. When the case was last before the Board in May 2012, it was remanded for additional development. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran claims that service connection for PTSD is warranted because it began during service. He has specifically asserted that a syncopal episode documented in his service treatment records was in fact an anxiety episode and the onset of his PTSD. No psychiatric symptoms were reported at the time of the syncopal episode. Further, no psychiatric complaints were made and no psychiatric disability was diagnosed at the December 1978 service separation examination. Medical opinions submitted by the Veteran from private physicians Drs. Calhoun and Walters each opine that the Veteran meets the diagnostic criteria for PTSD and that his current diagnosis of PTSD is related to events he experienced in service. Specifically, in a letter dated in July 2011, Dr. Calhoun opined that the Veteran had indications of psychophysiological hyper-reactivity dating back to August 1976 after being hospitalized for cardiac symptoms while he was in the military. Dr. Calhoun further stated that at that time the Veteran was not evaluated for a psychiatric cause to his symptoms, but severe anxiety and PTSD could have caused his symptoms. Dr. Calhoun therefore concluded that it is very likely that the Veteran was having symptoms of PTSD in service that went undiagnosed. In a statement received in June 2009, Dr. Walters indicated that the fact that the Veteran, an otherwise healthy young person, passed out and had to be transferred by med-evac, indicates that the Veteran experienced an extraordinary and severe event which he was unable to handle. Dr. Walters essentially opined that the Veteran's psychiatric problems can be documented as far back as the 1970s. However, as noted in the Board's May 2012 remand, these opinions do not address the absence of psychiatric findings in the service treatment records, to include at the service separation examination. In May 2012 the Board remanded the Veteran's claims in order to schedule the Veteran for a VA examination to determine if the Veteran has PTSD or any other psychiatric disorder which had onset during his active service, or was caused by his active service. It was noted that the examiner must provide an explanation for all opinions rendered. If PTSD was diagnosed, the examiner was instructed to identify the in-service stressor on which the diagnosis is based. The examiner was instructed to fully explain his or her opinion, citing to claims file documents as appropriate. Finally, if any psychiatric disability was diagnosed and found related to active service, the examiner was instructed to provide an opinion as to whether one or more of the Veteran's service-connected disabilities results in unemployability, and to full explain his or her opinion, citing to claims file documents. The Veteran underwent a VA examination in September 2012. The report of that examination reflects that the examiner reviewed the claims file. The report contains an extensive narrative regarding the Veteran's childhood history, occupational history, educational history, military history and post-military history. The examiner opined that the Veteran meets the diagnosis of PTSD based upon his chronic nightmares, sleep impairment, anxiety, suspiciousness, problems with authority, hypervigilance, and issues with safety and control. The examiner also indicated that the Veteran meets the criteria for a diagnosis of personality disorder, not otherwise specified, because he demonstrates enduring patterns in challenges in perceiving and interpreting his involvement and responsibility for events and relationships, in range, intensity and appropriateness of his affectivity, interpersonal functioning, and impulse control. The examiner further opined that it is more likely than not that the PTSD was caused by military experiences. However, the examiner stated that the intensity of the Veteran's expression of symptoms and his problems in occupational and social functioning are likely more influenced by his personality disorder. The examiner provided a full history of the Veteran's military experiences, to include several of his claimed stressors (assaults in service), and the examiner identified that the Veteran's PTSD diagnosis was based upon the assaults in service. However, the examiner also stated that there is no way of proving the alleged military sexual trauma component of those attacks. Further, the examiner stated that when looking at corroborating evidence there were no reported behavioral concerns for the rest of boot camp after the attacks. Moreover, the examiner pointed out that the Veteran did not report any behavioral consequences in the military such as Article 15s and appeared to have all meritorious promotions. Therefore, the examiner did not adequately support the stated opinion that it is more likely than not that the Veteran's PTSD was caused by military experiences, especially given the fact that the examiner seems to be supporting the stated opinion with factors that weigh against a finding that the claimed stressors actually occurred. Additionally, despite the examiner's indication that the claims file was reviewed, the examiner did not address the service treatment records from May and August 1976 showing complaints of lightheadedness, dizziness, and shortness of breath, and findings of premature ventricular contractions of unknown etiology. Instead, the only mention of the Veteran's hospitalization in the examination report is the Veteran's statement that he was running from demons and passed out, having to be med-evaced to Madigan and in the hospital for nine days. The Veteran also reported that he had experiences where he saw stars and thought he would pass out under the influence of alcohol and marijuana. Further, the examiner did not address Dr. Calhoun's statement that the August 1976 hospitalization for cardiac symptoms was likely the onset of PTSD or Dr. Walters' statement that the Veteran's problems date back to the 1970s. Finally, the VA examiner did not address any of the other post-service VA medical evidence describing symptoms such as a racing heart, heart palpitations, and anxiety. The Board points out that the medical evidence of record includes a May 1976 service treatment record which reflects that the Veteran had complaints of lightheadedness, dizziness, and shortness of breath off and on for three weeks. He denied any drug or alcohol abuse. An August 1976 service treatment record notes that the Veteran was in good health until May 9, 1976 when he experienced a single syncopal episode lasting two to three seconds with palpitations while standing inspection. After being taken to the Dispensary, it was noted on EKG that he was having several premature ventricular contractions. Since then he has had two to three similar episodes never resulting in complete loss of consciousness. Because of the lack of facilities at his base in Japan, doctors elected to air evac him to Madigan where a more thorough workup could be undertaken. He was admitted on August 8, 1976 and discharged on August 17, 1976. The diagnosis was benign premature ventricular contractions. The cardiology staff felt that this diagnosis would not hamper the Veteran in any way and should not keep him from active duty. An August 1976 clinical history record notes that there was no depression or sleep disturbance. Another August 1976 service treatment record states that the Veteran was ready to leave the service. Another August 1976 service treatment records notes that the Veteran had two or three other episodes of syncope, etiology unknown, occurring under stressful situation. A July 2002 VA treatment record notes that the Veteran reported heart palpitations in the military. The Veteran was noted to have a history of anxiety. He described chest pain at times that he feels is related to stress and anxiety. He reported being short of breath when he feels under stress. A January 2003 VA examination report notes that the Veteran reported having two similar episodes of syncope after the one in service and he stated that they are associated with stress, sweating, chest pain, and rapid heartbeat. He indicated that these episodes were thought to be panic attacks. He stated that when he is not having stress, he does not have these episodes. The diagnosis was probable anxiety attacks. A September 2005 VA primary care note indicates that the Veteran has had panic attacks in the past and the Veteran feels that he still has these issues when he gets stressed; he gets a fight or flight feeling, his heart starts to race, and he feels hot and overwhelmed by his emotions. An April 2006 VA treatment record notes that the Veteran reported several episodes of dizziness which occurred with change in position. This started three to four months ago. He also reported one episode of syncope. He stated that this is not about is heart, it is all about his anxiety. A June 2008 VA individual mental health counseling note indicates that the Veteran reported having panic attacks, being angry, and not having friends. When told that psychotherapy was an ideal treatment for those issues, the Veteran stated that he did not want psychotherapy. The Veteran stated that he has had a disease for the past 30 years and indicated that he wanted compensation. He stated, "I should be paid." The authoring social worker noted that that the Veteran had not relayed any military related trauma and was focused on compensation. In light of the above, the Board finds that the September 2012 VA examination report is inadequate for adjudication purposes. A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the opinion that it is more likely than not that PTSD is related to military experiences is based upon a factual premise (the occurrence of the in-service personal assaults) which the examiner herself calls into question, and it does not contain any sort of rationale for the opinion. Moreover, it does not address the service treatment records showing premature ventricular contractions of unknown etiology or the private medical opinions indicating that this was the onset of the Veteran's PTSD. Therefore, a remand is required for a medical opinion based upon an accurate review of the Veteran's documented medical history and one that includes a complete rationale. With respect to the TDIU claim, the September 2012 VA examiner opined that because the Veteran made the choice to no longer work after September 11, 2001, it is challenging to make an assessment on his occupational functioning. The examiner did not provide the requested opinion of whether one or more of the Veteran's service connected disabilities results in unemployability as defined by 38 C.F.R. § 4.16 (2012). Instead, the examiner did not provide any opinion at all, and did not state that an opinion could not be given. The examiner merely stated that it was challenging to render such an opinion. As such, a remand is required in order to obtain the requested opinion. Finally, the record indicates that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). It is not clear from the record if his SSA disability is relevant to the claims on appeal. In any event, VA must attempt to obtain relevant records from a Federal department or agency unless further attempts would be futile. These records include medical and other records from SSA. See 38 C.F.R. § 3.159(c)(2). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically includes requesting information from other Federal departments. In Baker v. West, 11 Vet. App. 163, 169 (1998), the Court further stated that VA is required to obtain evidence from other agencies, including decisions of the SSA. The Veteran's SSA records are not associated with the claims file. Because these records could contain relevant evidence to the claims on appeal, the Board finds that they should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and obtain all records related to the Veteran's claim for Social Security disability benefits. All medical records and all Social Security decision documents must be obtained. All attempts to obtain these records must be documented in the claims file. 2. Return claims file, to include a copy of this remand, to the VA examiner who conducted the September 2012 VA examination. The examiner must review the claims file, to specifically include the treatment records itemized below. The examiner must provide an opinion as to whether it is at least as likely as not (ie., a 50 percent or better probability) that the Veteran's PTSD had its onset during service. In rendering such an opinion, the examiner must address the May 1976 service treatment record showing complaints of lightheadedness, dizzy spells and shortness of breath, the and August 1976 service treatment records showing episodes of syncope occurring under stressful situations, findings of premature ventricular contractions, and notation that the Veteran was ready to leave the service, as well as the lack of psychiatric diagnoses in service or at the separation examination. The examiner must also address the Veteran's post-service VA treatment records indicating complaints of dizziness, heart palpitations, etc. with anxiety, Dr. Calhoun's July 2011 opinion that PTSD had its onset during service, and Dr. Walters June 2009 opinion that the Veteran's problems date back to the 1970s. Further, the examiner must reconcile her September 2012 opinion that it is more likely than not that the Veteran's PTSD was caused by military experiences (specifically, assaults while in the military) with the examiner's finding that there is no corroborating evidence of the alleged military sexual trauma component of the attacks in service such as reported behavioral concerns, behavioral consequences such as Article 15s, and the indication that the Veteran appeared to have all meritorious promotions. In other words, the examiner should review the claims file and determine whether there is evidence of behavior changes or other relevant changes following the claimed personal assault(s), and opine as to whether that evidence indicates that the personal assault(s) occurred. 38 C.F.R. § 3.304(f)(3). If PTSD is found to have had its onset during service or if the examiner opines that the evidence indicates that the personal assault(s) occurred, the examiner must also provide an opinion as to whether one or more of the Veteran's service-connected disabilities results in unemployability as defined by 38 C.F.R. § 4.16 (2012). The examiner must fully explain the opinion, citing to claims file documents as appropriate. In providing this opinion, the examiner should consider only the effects of the Veteran's service-connected disabilities and should not consider the Veteran's other disabilities or his age. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner is advised that that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the claim; less likely weighs against the claim. If the September 2012 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinion. If a new VA examination needs to be conducted in order to obtain such an opinion, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 3. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. The appellant 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). 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).