Citation Nr: 1312176 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 06-34 256A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Richard G. Maxon, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1966 to February 1970. This appeal arose before the Board of Veterans' Appeals (Board) from a June 2005 decision of the Phoenix, Arizona, Department of Veterans Affairs (VA), Regional Office (RO). The Veteran testified before the undersigned at a personal hearing conducted at the RO in August 2009. A transcript of this proceeding has been associated with the claims folder. In November 2009, the Board reopened a final disallowed claim for service connection for post traumatic stress disorder (PTSD) and remanded the claim for further development, including consideration of whether service connection was in order for psychiatric disorders other than PTSD. Following compliance with the November 2009 remand instructions, the case was returned to the Board for further appellate consideration. In May 2011, the Board issued a decision that, in part, denied service connection an anxiety disorder, to include PTSD. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC). In March 2012, the parties to the matter agreed upon a Joint Motion for Remand (JMR). The CAVC issued an Order on March 20, 2012, which vacated the Board's May 2011 decision and returned the matter to the Board for reconsideration consistent with the March 2012 JMR. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran has sought entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, and diagnosed as an anxiety disorder, not otherwise specified. The Veteran believes that his psychiatric disorder is directly related to his period of service and the traumatic experiences that he endured during service. As noted above, the Board had previously denied entitlement to service connection for an acquired psychiatric disorder. In its May 2011 decision, the Board found that there was no credible evidence of a diagnosis of PTSD. The Board also found that the anxiety disorder diagnosed by the June 2010 VA examiner was not related to any aspect of the Veteran's period of service or to any service-connected disorder, namely his service-connected diabetes mellitus. In coming to this determination, the Board had found that the June 2010 VA examination was adequate. Specifically, the Board pointed out that the examiner, a psychiatrist, had conducted a complete review of the medical history and had provided a clear diagnosis with a complete rationale. The examination demonstrated an understanding of the circumstances of the Veteran's service, to include his description of the Veteran's various stressors. The Board noted that the examination was not rendered inadequate simply because it had failed to diagnose PTSD. The Board concluded that the examination was thorough and complete and provided a sufficient basis for the examiner's conclusion that the diagnosed anxiety disorder was not related to either the Veteran's service or to his service-connected diabetes mellitus. In the JMR, the parties also noted that the June 2010 VA examiner had reviewed the claims folder and the medical records. The parties pointed out that the June 2010 examiner had noted that the Veteran had diabetes mellitus and "diabetic neuropathies," which were service-connected. The parties noted some lines in the examination report that may be favorable to the Veteran's claim. Specifically, they pointed to a statements in the 2010 report such as the following: "some cognitive dysfunction in the context of stress associated with anxiety from loss of physical abilities to perform previous enjoyable activities" and "Anxiety related to the future (finances, fears of homelessness, worsening medical problems), ruminative style, as well as his chronic pain (with resulting mobility limitations) are likely affecting his cognitive functioning." The parties to the JMR noted that this examination report might be favorable to the Veteran, suggesting a link between his anxiety disorder and physical limitations caused by his service-connected diabetes mellitus and neuropathies. It is noteworthy, however, that the parties to the JMR admitted that the examiner had not stated whether the anxiety was or was not related to the Veteran's service-connected disabilities, indicating that some clarification might be required. The Board has carefully reconsidered the June 2010 VA examination report. PTSD was specifically ruled out, as the Veteran had not endorsed sufficient symptoms to justify the diagnosis. The diagnosis was anxiety disorder, not otherwise specified. The examiner had stated that the Veteran had "some cognitive dysfunction in context of stress associated with anxiety from loss of physical abilities to perform previous enjoyable activities." The examiner assigned GAF score of 50, and indicated that this was mostly due to the Veteran's physical limitations. The examination report does not indicate whether the physical limitations that the Veteran experiences, and which account for his anxiety, are due to his service-connected diabetic neuropathy of the upper and lower extremities, or are due to nonservice-connected orthopedic disorders, namely bilateral knee strain, mild lumbar degenerative disc disease, and bilateral plantar fasciitis. This needs further clarification before a final decision can be made in this case. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who conducted the June 2010 VA examination. The examiner should be asked to review the claims folder and provide an opinion indicating what physical limitations are causing the Veteran to experience anxiety. Specifically, the examiner should indicate whether these physical limitations are due to the service-connected diabetic neuropathy or to the nonservice-connected orthopedic disorders (bilateral knee strain, mild lumbar degenerative disc disease, and bilateral plantar fasciitis). The examiner must review the entire claims file, to include pertinent records in the Veteran's Virtual VA e-folder (which the RO must make available to the examiner). Such review must be noted in the examination report. A complete rationale for the opinion proffered must be provided. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the examiner who conducted the June 2010 VA examination is no longer available, refer to the case to another examiner qualified to provide an addendum clarifying the June 2010 opinion. If another VA examination is deemed necessary, such should be scheduled. If an additional VA examination is scheduled, the Veteran must be informed of the importance of reporting to that examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter advising the Veteran of the time, date, and location of any scheduled examination must be included in the claims folder, and the letter should indicate that it is being sent to the Veteran's last known address of record. If the Veteran fails to report for the examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 2. Once the development above has been completed, the Veteran's claim for service connection for an acquired psychiatric disorder must be readjudicated. If the decision remains adverse to the Veteran, he and his representative must be provided a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).