Citation Nr: 1312601 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-43 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from July 2003 to October 2003, from January 2005 to March 2006, and from August 2006 to October 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned at a January 2012 Travel Board hearing. The hearing transcript is of record. The appeal was remanded in March 2012 for additional development to include a VA examination. The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence demonstrates that the Veteran has been diagnosed with having other acquired psychiatric disabilities other than PTSD, to include an adjustment disorder. Thus, the claim of service connection for PTSD has been restated as shown on the title page of this decision. In accordance with Clemons, the Board finds that in any claim for service connection for a mental disorder the Board must consider any mental disorder that is reasonably raised by the record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that additional development is necessary in this case. The Veteran contends that he has an acquired psychiatric disorder to include PTSD which is related to his periods of active duty service. The Board notes that the Veteran was afforded a VA PTSD examination in April 2008 at which time a VA examiner concluded that he did not meet the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, (DSM-IV) criteria for a PTSD diagnosis. Rather, the examiner diagnosed him as having unspecified adjustment disorder, and assigned a Global Assessment of Functioning (GAF) score of 70, indicative of some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well and having some meaningful interpersonal relationships. The examiner noted that the Veteran experienced thoughts of being redeployed and breaking-up his family, and recommended that he see a psychiatrist for an evaluation if his symptoms worsened. The Veteran was afforded a subsequent VA PTSD examination in June 2011, at which time the VA examiner provided no psychiatric diagnosis. Rather, the examiner listed, "Marital stress, stressful occupational environment, academic and occupational transition," as recent psychosocial and environmental stressors on Axis IV and assigned a GAF score of 85, indicative of absent or minimal symptoms, with good functioning in all areas and no more than everyday problems or concerns. The examiner explained that the Veteran reported mild symptoms with feeling guarded, variable irritability, some anxiety and a decreased range of interests, but was working fulltime and attending school with no indication of impairment of occupational or academic functioning. Although the April 2008 VA examiner diagnosed the Veteran with adjustment disorder and concluded that he did not meet the DSM-IV criteria for a PTSD diagnosis, he did not opine as to the etiology of the Veteran's diagnosed adjustment disorder. He listed "planning a wedding" on Axis IV, but also conceded that the Veteran had recurrent thoughts of being redeployed and breaking-up his family. The April 2008 VA examination was, therefore, inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The March 2012 Remand noted that the June 2011 VA PTSD examination failed to diagnose a psychiatric disability; but, stressed that the earlier April 2008 VA PTSD examination diagnosed an unspecified adjustment disorder. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court stressed that the specific service connection requirement of a current disability is satisfied when the disability is "current at the time a claim is filed" even where the disability resolves prior to the Secretary's adjudication of the claim. See also Gilpin v West, 155 F.3d 1353 (Fed. Cir. 1998). As such, the Veteran could possibly be awarded entitlement to service connection for an acquired psychiatric disorder during the period that he exhibited psychiatric symptomatology. The March 2012 Remand specifically instructed the RO to provide the Veteran's complete claims file to the VA examiner who authored the April 2008 VA PTSD examination report in order for the examiner to provide a supplemental opinion as to the probable etiology and date of onset of the Veteran's diagnosed adjustment disorder. Further, if the April 2008 VA examiner was unavailable or unable to render the requested supplemental opinion, the Veteran was to be afforded another VA examination in order to ascertain the probable etiology and date of onset of his diagnosed adjustment disorder, as well as any other psychiatric disorder diagnosed at the time of the examination. A May 2012 addendum was received from the June 2011 VA examiner which addressed only the Veteran's lack of PTSD symptomatology. This is inadequate as it was not from the April 2008 examiner, nor did it address the requested etiology of the Veteran's diagnosed adjustment disorder. In addition the October 2012 supplemental statement of the case (SSOC) also did not discuss the Veteran's anxiety disorder; that the addendum failed to address the specific reason for the Board's remand; nor did it note that the Veteran was not offered an additional VA examination as the April 2008 examiner was apparently not available. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders, and that the Secretary of Veterans Affairs has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). As the requested information has not been obtained, the appeal must be returned to the RO so that another examination can be conducted. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for any psychiatric disorder. The Veteran must be asked to complete a separate VA Form 21- 4142 for any private physician or source of treatment he may identify. The RO must then obtain all identified records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the RO should provide the Veteran's claims file, to include any evidence obtained by paragraph 1 above, to the VA examiner who authored the April 2008 VA PTSD examination report in order for the examiner to provide a supplemental opinion as to the probable etiology and date of onset of the Veteran's diagnosed adjustment disorder. The examiner should express this opinion in terms of "more likely than not" (i.e., probability greater than 50 percent), "at least as likely as not" (i.e., probability of 50 percent), or "less likely than not" (i.e., probability less than 50 percent). The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. Please note, if the April 2008 VA examiner is unavailable or unable to render the requested supplemental opinion, the RO must afford the Veteran another VA examination in order to ascertain the probable etiology and date of onset of his diagnosed adjustment disorder, as well as any other psychiatric disorder diagnosed at the time of the examination. The examiner must be provided with, and review, the entire claims file in conjunction with the examination. All necessary special studies or tests must be accomplished. After a thorough review of the Veteran's claims file, to include the Veteran's statements of record, the medical evidence including all previous VA PTSD examinations, and a discussion of each, the examiner must state whether any diagnosed psychiatric disorder, to include adjustment disorder, was incurred in, aggravated by, or otherwise related to his active duty service, to include service in imminent danger pay areas of Iraq and Afghanistan. If the VA examiner does not find any psychiatric disorder at the time of examination, the VA examiner must explain this finding in light of the previous adjustment disorder diagnosis of record. The RO must advise the VA examiner that the Veteran's statements are competent evidence of symptomatology in service or thereafter. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ____________________________________________ Thomas H. O'Shay 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).