Citation Nr: 1308617 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-40 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depression, and polysubstance abuse. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to June 1973 and from April 1978 to October 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. The Veteran testified at a December 2012 video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. 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 contends that he has an acquired psychiatric disability as the result of his active military service. The Veteran identified several in-service stressors that he asserts caused his current acquired psychiatric disorder, to include finding a grenade in a pocket while doing laundry, having his ship fired upon, and being denied a promotion. In May 2012, the Veteran underwent VA examination in conjunction with his claim. The VA examiner diagnosed major depression, chronic, and polysubstance abuse, including etoh in partial remission, but found the Veteran did not meet the criteria for a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, (DSM-IV). DSM-IV, Fourth edition, American Psychiatric Association (1994). In a June 2012 addendum opinion, the VA examiner reviewed the Veteran's claims file and opined that the Veteran's current diagnoses were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner observed the mention of depressive symptoms in the service treatment records. However, because there was no clinical diagnosis of a major depressive disorder, the VA examiner found the Veteran's current diagnoses could not be linked to the past without speculation. The VA examiner was unable to find a clinical link in the record that specifically linked the Veteran's chronic mental health problems to a specific military experience. The VA examiner explained that although the record did show depressive symptoms in service, it was inadequate evidence of on-going problems to support a depressive diagnosis. The VA examiner stated that it was not to say that the Veteran did not have a mental health diagnosis in service but rather that there was insufficient documentation to support a clinical diagnosis of major depression. The VA examiner reported that he could not state without speculation whether the Veteran had an undiagnosed depressive disorder during active military service. The VA examiner further stated that in all likelihood the Veteran's issues were more related to his chronic depression and substance abuse/alcohol problems versus a traumatic experience. Here, the Board finds the May 2012 VA examination and June 2012 addendum opinion inadequate, and therefore, an additional examination is necessary for the purpose of determining service connection. First, the VA examiner stated that he could not resolve whether the Veteran's current diagnoses could be linked to the past without resorting to speculation. In this respect, the Court has held that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996. Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102 (2012). In addition, the VA examiner appears primarily focused on whether the Veteran had an in-service clinical diagnosis of depression. Specifically, the VA examiner stated that he could not say that the Veteran did not have a mental health diagnosis in service, only that there was insufficient documentation to support a clinical diagnosis of major depression. However, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Here, service treatment records reflect both the Veteran's reports of depressive symptoms and a July 1978 diagnosis of alcoholism. As such, it does not appear that the VA examiner considered the Veteran's in-service symptomatology within the context of any acquired psychiatric disorder or a possible relationship between the Veteran's current diagnoses and any in-service acquired psychiatric disorder, to include PTSD and alcohol abuse. The Veteran is competent to report his in-service experiences and symptoms. 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). For these reasons, the Board finds that the May 2012 VA examination and June 2012 addendum opinion 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 v. Nicholson, 21 Vet. App. 303, 311 (2007). 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 an additional VA examination with respect to the claims on appeal. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.159 (2012). Additionally, at the December 2012 video conference hearing, the Veteran indicated that he received disability benefits from the Social Security Administration (SSA) on the basis of an acquired psychiatric disorder. Although the record includes a Social Security Statement, there is no further documentation concerning an award of SSA disability benefits. When VA is on notice of records held by SSA or other agencies that appear relevant to a pending claim, VA must obtain and consider them. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As a result, a remand is warranted in order to attempt to obtain a complete copy of the Veteran's SSA records. Finally, the claim for a TDIU is inextricably intertwined with the service connection claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Because a favorable determination regarding the claim for service connection for an acquired psychiatric disorder would clearly impact the Veteran's claim for a TDIU, the issue of entitlement to a TDIU is also remanded. Accordingly, the case is REMANDED for the following actions: 1. Contact the Social Security Administration and request a copy of any decision made pursuant to a claim of the Veteran for disability benefits, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's claims file. Efforts to obtain these records must continue until the RO or AMC determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the Veteran, and he must then be afforded an opportunity to respond. 2. 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 military service. In rendering the requested opinion, the examiner should specifically consider the July 1978 service treatment record showing a diagnosis of alcoholism and an April 1980 service treatment record indicating the Veteran was mildly depressed. The examiner should also address the Veteran's lay testimony, to include his statements regarding in-service duties and symptoms, as well as his symptoms following separation from service. In addition, the VA examiner is reminded that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 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. 3. After the development requested above has been completed to the extent possible, the AMC/RO should readjudicate the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and alcohol abuse. If any benefit sought on appeal remains denied, the Veteran should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. 4. If service connection is granted for an acquired psychiatric disorder, the AMC/RO should obtain an opinion from the VA examiner on the overall effects of his service-connected disability on his ability to maintain employment consistent with his education and occupational experience. The claims folder must be made available to the VA examiner for review in conjunction with the opinion. Based on a review of the case, the VA examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disability alone precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. If the above requested opinion cannot be made without resort to speculation, the VA examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 5. The AMC/RO must then readjudicate the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability. If the claim is denied, the Veteran must be provided a Supplemental Statement of the Case and an adequate opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ 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).