Citation Nr: 1306201 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 12-24 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. During the pendency of the Veteran's appeal, she relocated to Orlando, Florida, and the St. Petersburg RO properly assumed jurisdiction over the claim. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a review, the Board observes that further development is required prior to adjudicating the Veteran's claim. The Veteran contends that she has PTSD as the result of an in-service stressor. Service treatment records show that the Veteran was diagnosed with PTSD during service in August 2000 with symptoms noted to be resolving in February 2001. The Veteran was declared to be fit for full duty in February 2001. After service, the Veteran underwent a VA examination in September 2009 by clinical psychologist Dr. F.S. The examiner provided Axis I diagnoses of depressive disorder NOS, mood disorder due to general medical condition, and alcohol abuse. The examiner maintained that the Veteran's level of depression was significant and was likely related to a multitude of factors including past trauma, both pre-military and during the military, health problems that hormonally could cause depressive symptoms, and recent stressors such as the death of a close friend. In an October 2009 addendum, the examiner added that regarding the mood disorder due to a general medical condition, the medical condition contributing to the Veteran's depressed mood was her polycystic ovary syndrome. Regarding the Veteran's depressive disorder NOS diagnosis, the examiner maintained that current psychosocial stressors (death of friend, limited social support, infertility from polycystic ovary syndrome, divorce) were the "primary" factors contributing to this diagnosis. The examiner maintained that the Veteran had depressive symptoms that were presently being caused by physiological (hormonal) changes from her polycystic ovary syndrome and current psychosocial stressors. The examiner noted that the Veteran's past traumatic experience that occurred while in the military was not a "primary" contributing factor in her current depression. In a September 2010 letter, VA clinical psychologist M.C. reported that she had been working with the Veteran at the Orlando VA Medical Center since July 2010. Dr. M.C. indicated that the Veteran was participating in individual therapy with her and that she was scheduled to meet with a psychiatrist. Dr. M.C. maintained that she had diagnosed the Veteran with PTSD (chronic) and mood disorder NOS. Dr. M.C. opined that the Veteran's PTSD was as likely as not related to her military service traumas. Thereafter, the Veteran underwent another VA examination in May 2012 by clinical psychologist Dr. J.J. The examiner provided Axis I diagnoses of depressive disorder NOS, mood disorder due to general medical condition, and alcohol abuse, and an Axis II diagnosis of mixed personality traits. The examiner noted that the claims file was reviewed including records from the Orlando VAMC and an April 25, 2012 psychiatric follow-up report by Dr. L. The examiner maintained that he agreed with the previous findings noted in the September 2009 VA examination report and October 2009 addendum. The examiner observed that the factual details of the Veteran's history were unchanged and there had been no significant changes in reported symptoms or functioning since that time. The examiner noted that the Veteran did not meet the full DSM-IV criteria for PTSD related to her military service and did not report fulfilling the necessary PTSD criteria for section C. The examiner observed that according to prior records she was treated for PTSD symptoms during service in 2000, but symptoms were not found to be chronic and were noted as resolving in 2001. She was subsequently medically cleared and deployed shortly thereafter. Medical records also indicated a negative PTSD screen in 2008 and results of a comprehensive assessment with objective personality testing in 2009 were also not suggestive of PTSD. The examiner maintained that diagnoses of mood disorder due to a general medical condition (polycystic ovary syndrome and infertility) and depression NOS were unrelated to military service. The examiner indicated that ongoing psychosocial stressors continued to be "primary" contributing factors. The examiner maintained that while recent treatment notes indicated a diagnosis of PTSD, inconsistent and/or unreliable reporting of symptoms might in part account for this variation including, for example, the indication of MST with suggestion of a military sexual trauma reported at some point which actually was not indicated in the Veteran's history. The examiner noted that the Veteran's intrinsic personality traits and chronic alcohol abuse were additional contributing factors. The Board observes that the September 2010 VA clinical psychologist reported that the Veteran had been receiving treatment for PTSD at the Orlando VAMC since July 2010, records of which are not in the claims or electronic file. The May 2012 VA examiner similarly referenced and relied on VA treatment records (Orlando VAMC) that are not in the claims or electronic file. The Board finds that these records are relevant and should be procured for review. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (noting that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In addition, the Board observes that the May 2012 VA examiner indicated that he agreed with the September 2009 VA examiner. The 2009 VA examiner indicated that the Veteran's past traumatic experience that occurred while in the military was not a "primary" contributing factor in her current depression. The 2012 VA examiner indicated that ongoing psychosocial stressors continued to be "primary" contributing factors. While the Veteran's in-service stressor event might not be a "primary" contributing factor to the Veteran's depressive disorder, it is unclear as to whether any portion of the depressive disorder is attributable to the stressor. For these reasons, the Board finds that the examination report should be returned to the 2012 VA examiner for a clarifying opinion addressing this question. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records dating since May 2009 pertaining to any treatment the Veteran received for her psychiatric disorders from the Memphis VAMC and Orlando VAMC. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. After completion of the above development, return the May 2012 VA examination report along with the claims file and a copy of this remand to the examiner for a clarification of the opinion rendered. While the Veteran's in-service stressor event might not be a "primary" contributing factor to the Veteran's depressive disorder NOS, the examiner should provide an opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any portion of the depressive disorder NOS is related to the in-service stressor event. The examiner should provide a complete rationale for the opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he should 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 he has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and her representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ TANYA A. SMITH Acting 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).