Citation Nr: 1307247 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-41 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a higher initial rating for service-connected adjustment disorder with mixed emotions (claimed as posttraumatic stress disorder), currently evaluated as 30 percent disabling. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for low back disorder. 4. Entitlement to service connection for left knee disorder. ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. 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 claims. In regard to the rating claim, the record reflects that the Veteran filed a claim seeking service connection for posttraumatic stress disorder (PTSD). The Veteran underwent a VA mental examination in October 2009 at which time the examiner (Dr. S.C.) diagnosed adjustment disorder with mixed emotions, and assigned a Global Assessment of Functioning (GAF) score of 55. The examiner indicated that the Veteran was trying to adjust to civilian life. The examiner maintained that it was doubtful at this time how much of the Veteran's symptoms were due to PTSD without speculation. Accordingly, in the appealed December 2009 rating decision, the RO established service connection for adjustment disorder with mixed emotions. Thereafter, the Veteran submitted a February 2010 psychological evaluation from L.G., MA, LPA. (and co-signed by Dr. A.F.). L.G. diagnosed the Veteran with severe chronic PTSD and assigned a GAF score of 37. L.G. maintained that due to the severity and chronicity of the Veteran's PTSD symptoms, his prognosis for recovery was poor and therefore, he was considered to be totally and permanently disabled. The Veteran underwent another VA examination in July 2011. The examiner (Dr. J.B.) maintained that the Veteran did not currently meet the clinical diagnostic criteria for an Axis I mental disorder. The examiner noted that the prior diagnosis of adjustment disorder appeared to have largely resolved based upon the Veteran's symptom report and diagnostic interview information. The examiner does not mention the February 2010 private psychological evaluation. There is a stark contrast between the findings of the VA examiners in 2009 and 2011 and the findings of the private examiner in 2010 that cannot be reconciled by the Board without further medical commentary. It is unclear whether the Veteran's overall disability picture is more reflective of the 2009 and 2011 findings with the 2010 findings constituting an outlier or more reflective of the Veteran truly experiencing multiple distinct degrees of disability during various stages of the appeal period. For this reason, the Board finds that the 2011 examination report should be returned to the examiner for an addendum opinion that reconciles the VA and private examination findings. Also, underlying treatment records should be requested from L.G., MA, LPA. In regard to the service connection claims, the October 2009 VA joints examination report shows that the examiner made a finding that while the Veteran currently had pain, she could not establish a continuity to the reported knee pain from service without resorting to mere speculation. In so finding, the examiner described an August 2007 VA treatment record that reportedly referenced knee pain; however, this record is not in the claims or electronic file. The Veteran was discharged from service in January 2007, and VA treatment records associated with the claims file begin in January 2008. Thus, the record suggests that there are outstanding VA treatment records which may be relevant to all claims. As such, any available outstanding VA treatment records should be procured. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records dating from January 2007 to January 2008 pertaining to any treatment the Veteran received for his headache, low back, left knee, and psychiatric disorders from all treating VA facilities. 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. Request from the health care provider any underlying treatment records to the psychological evaluation that was provided by L.G., MA, LPA in February 2010. If necessary, contact the Veteran and ask that he complete and return an authorization form (VA Form 21-4142) to permit VA to obtain these treatment records. Notice to the Veteran of inability to obtain any identified records should comply with 38 C.F.R. § 3.159(e). The Veteran should also be advised that in the alternative, he can provide these records of treatment. 3. After completion of the above development, return the July 2011 VA examination report along with the claims file and a copy of this remand to the examiner for an addendum opinion. In light of the VA examination findings reported in October 2009 and July 2011 and the February 2010 psychological evaluation from L.G., MA, LPA., the examiner is asked to provide an addendum opinion reconciling the VA findings of an adjustment disorder that resolved with the private examiner findings of severe PTSD causing total and permanent disablement. In so providing, the examiner must address whether the Veteran's overall disability picture is (i) more reflective of the 2009 and 2011 findings with the 2010 findings constituting an outlier or (ii) more reflective of the Veteran truly experiencing multiple distinct degrees of disability during various stages throughout the 2009 to 2011 period. The examiner should provide a complete rationale for the opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, then the examiner 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 the examiner 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. 4. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be issued a supplemental statement of the case. Consideration should be made of all evidence submitted since the issuance of the September 2011 supplemental statement of the case. The Veteran should be 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ K. OSBORNE 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).