Citation Nr: 1313759 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-01 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active military duty from February 1979 to April 1982. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the course of appeal, the Veteran testified at a Decision Review Officer (DRO) hearing in January 2009 and at a Board Central Office hearing in March 2010. Transcripts of both these hearings are contained within the claims file. The Board by a July 2010 decision, in pertinent part, denied service connection for PTSD. By a Joint Motion for Remand (Joint Motion) approved by a March 2011 Order of the United States Court of Appeals for Veterans Claims (Court), the Secretary and the appellant agreed to vacate that portion of the Board's July 2010 decision which denied service connection for PTSD, in part based on a need to address an additional potential stressor to support the PTSD claim, and in part based on new Court precedent. In a recent decision, the Court held that claims for service connection for PTSD include claims for service connection for all psychiatric disabilities reasonably raised by the Veteran or the evidentiary record, based on the inherent unreasonableness of imputing self-knowledge of mental conditions from which the Veteran may be suffering. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Similarly, in this case the Veteran's claim the subject of this appeal requires broadening based on evidence of diagnosed depression. The psychiatric disorder claim on appeal has accordingly been restyled as one for service connection for a psychiatric disorder, to include depression and PTSD. The March 2011 Joint Motion reflects that the Veteran abandoned his claims for a rating in excess of 20 percent for the residuals of a modified Bristow repair of the left shoulder with recurrent tendonitis (left shoulder disability), and for a rating in excess of 10 percent for degenerative joint disease of the right wrist. Hence, the Board's adjudication of those issues in its July 2010 decision remains undisturbed. In January 2012, the Board denied entitlement to service connection for narcotic addiction, to include as secondary to service-connected residuals of a modified Bristow repair of the left shoulder with recurrent tendonitis (left shoulder disability) and for hyperkeratotic lesions on the plantar surfaces of both feet. In addition, the Board remanded the issues of entitlement to service connection for a psychiatric disorder to include PTSD and depression and entitlement to TDIU. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Unfortunately, further remand is necessary in this case to ensure that the requirements of the Board's January 2012 remand have been met. In its remand, the Board noted that the Joint Motion required that the Board consider whether the Veteran's more broadly characterized psychiatric disability, to include PTSD and depression, may be causally associated with service. 38 C.F.R. § 3.303, 3.304(f) (2012); Clemons. The Board remanded the issue for a VA examination addressing any such etiology for any current psychiatric disability. The Joint Motion also required that the Board consider whether a documented incident in service in which the Veteran reportedly was struck with a chair and dislocated his shoulder, was a stressor causative of the Veteran's claimed PTSD. Pursuant to the Board's instructions, the Veteran was provided with a VA examination in March 2012. The examiner found that the Veteran met the criteria for a diagnosis of PTSD and opiod dependence, and that it appeared that his symptoms were related to his fears of hostile military activity or terrorist activity. He also noted that the Veteran's symptoms were the result of in-service trauma. However, in rendering his opinion, the examiner found that it was less likely as not that the Veteran's PTSD was a result of his military service; he did not provide a rationale for this opinion. In addition, while the examiner indicated that the Veteran manifested affective and physiological signs of depression, he did not provide the required opinion as to whether his depression was related to service, or part of his PTSD. The examiner was asked to provide an addendum opinion, which was provided in March 2013. The examiner reiterated his finding that the Veteran's PTSD was less likely than not a result of military service. He recounted the incidents that continued to cause the Veteran emotional distress that occurred during military service, including the incident where the Veteran was involved in an altercation when his shoulder was injured. The examiner provided the rationale that these incidents were rather vague when explored in depth, however medical records and the Veteran's complaints supported the possibility that the Veteran may have developed symptoms of PTSD as a possible result of active duty experience. Unfortunately, these opinions require additional clarification. The March 2012 opinion is internally inconsistent. While the examiner appears to find that the Veteran has PTSD related to service within the body of the examination report, his opinion is that it is less likely than not that it is related to service. When asked to provide a rationale for his opinion, the examiner merely noted that the Veteran's reports of his in-service stressors were vague, but that it was possible that his PTSD was related to these stressors. VA regulations specify that reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102 (2012). Given the examiner's contradictory statements with regard to the likelihood that the Veteran's psychiatric disorder is related to incidents during active duty, clarification of his opinions is necessary. In addition, the examiner did not provide any comment on whether the Veteran had depression that was part and parcel of his PTSD or was a separate entity and, if so, whether his depression is related to service. The Veteran's TDIU claim is intertwined with the service connection claim the subject of present appeal and remand. Accordingly, adjudication of the TDUI claim must await development and readjudication of this claim. The Court has held that a claim which is inextricably-intertwined with another claim which remains undecided and pending before the VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the claim must be remanded for additional clarification. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran's claims file should be provided to the VA examiner who provided the March 2012 examination and the March 2013 addendum opinion to review the record and provide clarification and opinion as follows. If further examination or testing is needed, this should be undertaken. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed addendum opinion. The examiner should clarify his opinion as to whether the Veteran's PTSD is related to his claimed stressors in service, to include As noted above, in the March 2012 examination report, the examiner found that the Veteran met the criteria for a diagnosis of PTSD and opiod dependence, and that it appeared that his symptoms were related to his fears of hostile military activity or terrorist activity. He also noted that the Veteran's symptoms were the result of in-service trauma; however, his opinion in that report was that it was less likely as not that the Veteran's PTSD was a result of his military service. In his March 2013 addendum, the examiner noted that the Veteran's stressors were "vague" but that there was a possibility that the Veteran may have developed symptoms of PTSD as a possible result of active duty experience. The examiner should clarify his findings. In addition, the record reflects that the Veteran has additionally been diagnosed with depression. The examiner should provide an opinion as to whether the Veteran's depression is part and parcel with his PTSD, or a separate diagnosis. If it is found to be a separate diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's depression was caused by or is etiologically related to any incident of active duty. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 2. If any benefit on appeal remains denied, the AOJ should readjudicate the Veteran's claims, including his claim for entitlement to TDIU, and issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if 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). _________________________________________________ J. A. MARKEY 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).