Citation Nr: 1315525 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-15 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for acquired psychiatric disorders, including depression, dysthymia, general anxiety disorder, schizophrenia and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Nathan K. Cummings, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to March 1971. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for service connection for acquired psychiatric disorders, including depression, dysthymia, general anxiety disorder and schizophrenia. In June 2007, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing has been associated with the claims folder. In September 2009, the Board issued a decision denying the claim for an acquired psychiatric disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 memorandum decision, the Court vacated the Board's decision and remanded the case to the Board. In January 2013, the Board sent a letter to the Veteran advising him that his attorney was not accredited with VA and could not represent him in his appeal. However, the record reflects that the attorney has since become accredited and submitted a new VA Form 21-22a, Appointment of Individual as Claimant's Representative. Accordingly, that attorney has been listed on the title page as the Veteran's representative in this appeal. 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 Board notes that recently, evidence was submitted to the Board by the Veteran without a waiver of consideration of that evidence. Specifically, the Veteran's representative submitted a private medical report dated March 2013 concerning a diagnosis of PTSD in the Veteran, statements from the Veteran and his family members, updated VA progress notes through June 2012, and medical journal articles relating to PTSD. This evidence was submitted without a waiver of RO consideration. As such, and as it directly concerns the Veteran's psychiatric diagnosis, the Board finds that this case should be remanded so that the RO may consider this newly submitted evidence in the first instance. Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with active service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In this case, the Veteran's treating psychologist and Vet Center psychologist have given opinions relating the Veteran's current acquired psychiatric disorder to a military sexual trauma in service. The October 2003 QTC examiner diagnosed the Veteran under Axis I with general anxiety disorder, schizophrenia, chronic, and dysthymic disorder. He did not, however, offer an opinion as to the etiology for the Veteran's disorders, and he further indicated that a delineation of the Veteran's symptoms as belonging clearly and individually to each of the above diagnoses would be difficult because his thought processes were very disorganized, and he displayed a psychotic presentation, restlessness, apprehension, generalized fear and sadness. Additionally, at the time of the October 2003 QTC examination, the Veteran had not yet claimed a military sexual trauma. Having carefully reviewed the evidence, and in light of concerns expressed by the Court in the memorandum decision, the Board finds that remand is necessary in order to obtain a detailed medical opinion with supporting rationale, to include specific facts, evidence, and medical principles relied upon to support the medial opinion. 38 C.F.R. § 4.2 (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). As the case is being remanded, the RO should request the Veteran identify any additional VA or private treatment records dated from March 2009. All identified records, which have not already been added to the claims folder should be requested and obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA and non-VA treatment records identified by the Veteran. All attempts to secure this evidence must be documented in the claims folder. If, after making reasonable efforts to obtain named records the records are unable to be secured, notify the Veteran and (a) identify the specific records that were unable to be obtained; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently present acquired psychiatric disorder. The claims folders must be made available to and reviewed by the examiner. All indicated studies should be performed. The examiner should report a multi-axial diagnosis pursuant to the DSM-IV, identifying all current psychiatric disorders. The examiner should expressly diagnose or rule out PTSD, adjustment disorder, or depression. The VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current acquired psychiatric disorder was incurred or aggravated as a result of the Veteran's service. With respect to the PTSD claim in particular, the examiner should carefully review the service records and previous psychiatric evaluations contained in the record in determining whether there is credible evidence that the claimed in-service rape and assault took place. Consideration should be given to evidence that might tend to support or corroborate the occurrence of a personal assault, such as evidence of behavioral changes in service, etc. 38 C.F.R. § 3.304(f)(5). If the examiner concludes that an in-service personal assault led to the development of a psychiatric disability, the evidence relied on to conclude that the assault occurred should be specifically noted. The report of examination should include a complete rationale for all opinions expressed. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ MICHAEL LANE 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).