Citation Nr: 1307679 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 07-03 392A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety disorder with depressed mood, and to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In December 2011, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to service connection for neurodermatitis involving the upper extremities, shoulder areas, chest, and lower extremities. The record reflects that in August 2012, the RO granted service connection for neurodermatitis involving both upper extremities, both shoulder areas, chest, and both lower extremities, with an evaluation of 10 percent effective June 22, 2005. As such, this issue is no longer on appeal. In a January 2013 written brief presentation, the Veteran's representative raised the issues of entitlement to service connection for gastroesophageal reflux disease and entitlement to a total disability rating based on individual unemployability. Because these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 The Veteran asserts that a current acquired psychiatric disorder had its onset during active duty. She reports that she was first diagnosed with a nervous disorder and hyperventilation during active duty in 1981 and that throughout service she experienced anxiety and mood swings related to her in-service job duties. The Veteran contends that she did not seek treatment for her mental health problems during active duty for fear of the repercussions to her military career. She also asserts that her current acquired psychiatric disorder is related to her service-connected disabilities. Upon review of the record, the Board finds that a remand is warranted for an additional VA examination and opinion regarding the etiology of the Veteran's current acquired psychiatric disorder. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Here, the Board finds the opinions provided by the VA examiner in July 2009 and February 2012 are inadequate for the purpose of determining service connection. First, the July 2009 opinion focused primarily on the relationship between the Veteran's current diagnoses and her service-connected disabilities. As a result, the VA examiner does not appear to have considered the issue of direct service connection, particularly in light of the in-service notations of a nervous disorder, hyperventilation, and problems with stress as demonstrated in the Veteran's service treatment records. Further, although the VA examiner stated the Veteran's current depression was characterized primarily by job-related stress and difficulties related to her past marriage, the VA examiner did not address the Veteran's reports of her symptoms during service and immediately following separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). With respect to the February 2012 opinion, the VA examiner based the opinion on the fact that an acquired psychiatric disorder pre-existed service. However, as the Veteran's entrance examination and report of medical history do not demonstrate diagnoses or complaints of any mental health problems, and the evidence of record does not otherwise show by clear and unmistakable evidence that an acquired psychiatric disorder existed prior to service, the Veteran is presumed sound upon entrance into service. Therefore, the Board finds the February 2012 opinion was based, in part, on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Hadsell v. Brown, 4, Vet App. 208, 209 (1993). Additionally, service connection may not be based on a resort to speculation or even remote possibility, such as "perhaps," and medical opinions, such as the February 2012 opinion, that are speculative, general, or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102; Warren v. Brown, 6 Vet. App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, the VA examiner found he was unable to offer any further opinion regarding an increase in severity due to the natural progression of the disease without resorting to mere speculation. As a result, the Board finds the opinions provided in July 2009 and February 2012 inadequate for the purpose of determining service connection. Concerning the December 2012 independent medical opinion, the physician noted that the Veteran's service treatment records were negative for any reports of mental health problems, evaluation of, or treatment for a mental disorder. However, a July 1982 service treatment record reflects an assessment of "nervous disorder; hyperventilation," and indicates the Veteran was prescribed Valium. Also, service treatment records from October 1989 demonstrate the Veteran completed a stress management program. A November 1997 service treatment record reflects that the Veteran complained of erratic mood swings and problems sleeping. As a result, the Board finds the December 2012 opinion was also founded, in part, on an inaccurate factual basis. See Reonal, 5 Vet. App. at 460-61; Hadsell, 4, Vet App. at 209. Additionally, a March 2007 private treatment record demonstrates the Veteran reported experiencing multiple stressors involving her in-service duties that created significant anxiety. At the September 2011 Board hearing, the Veteran's husband testified that he experienced her reactions to the stressful situations required by her in-service duties and stated that she was very hyperactive, cried, and became upset. With respect to these symptoms, the Veteran testified that she did not seek treatment during service for fear of the repercussions. The Veteran and her husband are competent to report visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, generally, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303. Because the VA examiner did not address the in-service notations pertaining to the Veteran's symptoms or the lay testimony regarding her symptomatology, the Board finds the December 2012 opinion inadequate. For these reasons, the Board finds that the examinations and opinions of record are inadequate for adjudication purposes. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr, 21 Vet. App. at 311. As such, in order to satisfy VA's duty to assist, the Board finds that a remand is warranted in order to afford the Veteran additional VA examinations with respect to the claim on appeal. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any acquired psychiatric disorder diagnosed during the pendency of the appeal. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Following a review of the Veteran's claims file, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed acquired psychiatric disorder was incurred in or due to the Veteran's active duty service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any acquired psychiatric disorder was caused or aggravated by the Veteran's service-connected disabilities. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. In rendering the requested opinions, the examiner should specifically consider the notations in the Veteran's service treatment records demonstrating diagnoses of a nervous disorder and hyperventilation, as well as the Veteran's participation in a stress management program. The examiner should also address the Veteran's lay testimony, to include her statements regarding in-service duties and symptoms, as well as her symptoms following separation from service. Also, the examiner is reminded that the Veteran is presumed sound upon entrance to service. In providing the opinion, the examiner is advised that the term at least 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 contended causal relationship; less likely weighs against the claim. A complete rationale for any opinion expressed, to include citation to specific medical documents in the claims file and supporting clinical findings, must be included in the examination report. 2. Then, readjudicate the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety disorder with depressed mood, and to include as secondary to service-connected disabilities. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative must be provided with a Supplemental Statement of the Case. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran 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). _________________________________________________ U. R. POWELL 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).