Citation Nr: 1316192 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 08-26 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), major depressive disorder, dysthymic disorder, anxiety disorder, and adjustment disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. This appeal to the Board of Veterans' Appeals (Board) is from an August 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). In his August 2008 substantive appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board - in other words a Travel Board hearing. He subsequently, however, in September 2011, withdrew his hearing request, indicating instead that he wanted his case forwarded on to the Board without further delay. 38 C.F.R. § 20.704(e) (2012). But since his claim required further development before being decided on appeal, the Board remanded his claim in February 2012 to the RO via the Appeals Management Center (AMC) in Washington, DC. This additional development of the claim included asking him whether he had received additional treatment for his PTSD or other mental illness (regardless of the specific diagnosis), the records of which had not been submitted or otherwise obtained, so would need to be. This included, but was not limited to, records of any psychiatric-related treatment shortly after his separation from service, and any treatment for a "nervous system disorder" due to herbicide exposure from May to August 1991 by Dr. A of Pacific Care in Upland, California. The remand also was to give the Veteran opportunity to submit an additional statement containing more detail and information regarding his alleged traumatic experiences ("stressors") in Vietnam and, if necessary, attempting to independently verify the occurrence of these claimed events, including, but not limited to, by contacting the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly known as the Center for Unit Records Research (CURR)), and, provided there was confirmation of at least one alleged stressor, having him undergo a VA compensation examination for a medical nexus opinion concerning the likelihood his diagnosis of PTSD is the result of a verified stressor. On remand, he responded later that month in a statement in support of claim (on VA Form 21-4138) that he was being treated for PTSD at the VA Medical Center (VAMC) in Dublin, Georgia. These records were never requested, however, much less obtained, and he observed as much when submitting another statement in October 2012, declaring that the only records that had been obtained on remand were those at the VA clinic in Augusta, Georgia, not instead in Dublin, Georgia, where he had been treated. The Board therefore again remanded the claim to the RO via the AMC in November 2012 to obtain these additional VA treatment records to ensure compliance with its February 2012 remand directive to obtain these additional records. See Stegall v. West, 11 Vet. App 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board itself commits error as a matter of law in failing to ensure compliance, and further remand is mandated). The Board also remanded the claim to obtain a supplemental opinion from the VA examiner who had evaluated the Veteran in March 2012, following and as a result of the prior remand. Following that additional remand, the Veteran's treatment records from the Dublin VAMC, dated from September 2005 to November 2012, were obtained and uploaded into his electronic ("Virtual VA") file. Additionally, the March 2012 VA examiner provided a supplemental medical opinion in December 2012. Upon completion of this additional development and consideration of this additional evidence, the AMC continued to deny the claim for service connection for PTSD (as reflected in a March 2013 supplemental statement of the case (SSOC)), and since has returned the file to the Board for further consideration of the claim. This claim on appeal previously has been characterized as entitlement to service connection for PTSD. However, in light of the evidence showing diagnoses of other psychiatric disorders, including major depressive disorder, dysthymic disorder, anxiety disorder, and adjustment disorder, the Board has recharacterized the claim to encompass these additional diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Unfortunately, though, yet another remand of the claim is required. REMAN The Board sincerely regrets the additional delay that inevitably will result from this additional remand of the claim, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. The Veteran asserts that he has PTSD related to stressors experienced during his Vietnam service. The RO determined that he had alleged in-service stressors, including explosions and mortar attacks, which were related to fear of hostile military or terrorist activity and his claimed stressors were consistent with the places, types, and circumstances of his service. Accordingly, he was afforded a VA examination in March 2012. The psychologist found that the Veteran did not have a diagnosis of PTSD that conformed to the criteria set forth in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) based on her evaluation. Rather, she rendered an Axis I diagnosis of major depressive disorder. She acknowledged that his diagnoses at the Dublin VAMC were PTSD and dysthymia. She documented the Veteran's reported stressors, which she characterized as related to his fear of hostile military or terrorist activity, but determined they did not meet criterion A for a diagnosis of PTSD, as he did not report feelings of intense fear, helplessness, or horror. He also did not meet criterion C for a diagnosis of PTSD, as there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. She indicated the Veteran was then currently experiencing symptoms, instead, consistent with major depressive disorder and, according to his report, these symptoms had begun interfering with his activities around 1999. He later sought treatment for these symptoms in or around 2003, approximately three decades after the conclusion of his military service. Therefore, this evaluating VA psychologist concluded it was less likely than not the Veteran's major depressive disorder was caused by or a result of his military service. She acknowledged the Veteran had reported seeing a psychiatrist after his service in Vietnam, but before separation from service, but noted there were no records of such treatment in his service treatment records (STRs). She surmised the symptoms he reported having experienced at that time may have been an acute trauma reaction or PTSD; however, he does not currently meet the criteria for a diagnosis of PTSD as he does not meet criterion A (experiencing intense fear, horror, or helplessness in response to trauma) or criterion C (avoidance and numbing symptoms). In November 2012, the Board remanded the claim, in part, to obtain a supplemental opinion from the March 2012 VA examiner, to reconcile her conclusion that the Veteran does not meet the diagnostic criteria for PTSD with the conclusions of his treating VA healthcare providers who determined he does have PTSD. Subsequent to the Board's November 2012 remand, numerous VA treatment records, dated from September 2005 to November 2012, were uploaded to the Veteran's Virtual VA file. These records reflect diagnoses of and treatment for several psychiatric disorders, including PTSD, combat PTSD, dysthymic disorder, depression, anxiety disorder, and adjustment disorder. An August 2006 mental health treatment record documents that the Veteran was concerned about his service connection and wanted to request evaluation for PTSD. The diagnosis at that time was dysthymic disorder. During mental health treatment in April 2008, the Veteran stated that he had been trying to establish PTSD as one of his symptoms, and the Physician Assistant opined that, based listening to his history of problems through the years since returning from Vietnam, he did have PTSD. The assessment was dysthymic disorder, PTSD due to combat. The most recent mental health treatment record, dated in August 2012, reflects that the Veteran complained of being easily irritable with a tendency to anger for the past few months; however, he denied feeling depressed or experiencing significant insomnia. On examination, he was alert and well oriented and appeared euthymic. He was pleasant and conversant with relevant and coherent thought processes. Judgment and insight were intact and mood was stable. The assessment was combat PTSD, needing better stabilization for anxiety and irritability, and dysthymia. After these treatment records were obtained, the March 2012 VA examiner again reviewed the claims file in December 2012 and commented that she did not diagnose PTSD in March 2012, but, rather, diagnosed major depressive disorder, because the Veteran did not evidence any traumas to which he reacted with intense fear, helplessness, or horror per PTSD criterion A nor did he evidence persistent avoidance and numbness symptoms as defined by PTSD criterion C. She added that, as stated in her original report, the Veteran may have experienced PTSD in the past but, at the time of her examination, he did not meet the criteria for that diagnosis. She then acknowledged that while her diagnosis differed from that of the VAMC clinicians, it did not appear to be entirely inconsistent with their assessment, as these clinicians reported that the Veteran's history was significant for times when PTSD was not present. As an example, she cited the Veteran's September 2005 mental health intake evaluation, at which time the clinician reported mild PTSD symptoms on and off over a period of 25 years. She added that the VAMC clinicians had surmised that the Veteran's PTSD symptoms were most severe soon after his return from Vietnam, which she described as consistent with her suggestion that PTSD may have been present in the past. The VA examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD at the time of his March 2012 VA examination. However, the United States Court of Appeals for Veterans Claims (Court) has held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA treatment records dated since September 2005 (when the Veteran filed his claim for service connection) include several diagnoses of PTSD. Further, while the VA examiner provided an opinion regarding the relationship between the Veteran's diagnosed major depressive disorder and service, these VA treatment records document several other psychiatric disorders, specifically, dysthymic disorder, anxiety disorder, and adjustment disorder, during the pendency of the claim for service connection. As discussed in the introduction, the claim for service connection for a psychiatric disorder has been expanded consistent with Clemons. Because VA undertook to provide a VA examination to evaluate the claimed psychiatric disorder, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). If not, it is incumbent on the Board to return the examination report as inadequate so it may be corrected by obtaining all necessary additional information. See 38 C.F.R. § 4.2. Accordingly, in light of the Court's holding in McClain and the diagnoses of several psychiatric disorders during the pendency of the claim the Board finds that the claims file should be returned to the VA examiner to obtain a supplemental opinion which clearly identifies all psychiatric disorders present at any time since September 2005 (the date of the Veteran's claim for service connection) and provides an opinion, that is supported by clearly stated rationale, regarding the relationship between any such disorders and the Veteran's service. Further, while the VA examiner opined that the Veteran's major depressive disorder was less likely than not caused by or related to service, her opinion was based on his report of symptoms which began interfering with his activities around 1999. He had previously reported, in conjunction with his September 2005 claim, that his symptoms of PTSD were very bad in the mid-1980s, with "huge bouts of depression and guilt for several years." A September 2005 VA mental health consultation also documents his report of especially symptomatic PTSD in 1983-1984. While these September 2005 reports of increased symptoms in the mid-1980s appear to be somewhat inconsistent with the Veteran's statement, made during the March 2012 VA examination, that his psychiatric symptoms began to interfere with his work performance in 1999 when he could not concentrate at work, in rendering the supplemental opinion, the VA examiner should consider and address the September 2005 reports of increased psychiatric symptoms in the mid-1980s. The AMC/RO should arrange for the Veteran to undergo another VA examination only if the examiner who performed the March 2012 VA examination is unavailable to provide this further comment or the person designated is unable to provide this necessary comment without actually examining the Veteran. The Board further points out that the Veteran has asserted that his PTSD has existed from service to the present, as reflected in a December 2005 statement. It is worth noting, however, that a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Psychoses are amongst the conditions listed in § 3.309(a) as chronic, per se, so subject to this continuity of symptomatology exception. According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. So only these specific mental disorders permit the Veteran to establish the required linkage with his current disability and service by way of showing continuity of symptomatology since service. Additionally, in his September 2005 claim for service connection, the Veteran reported that, after returning from Vietnam, his company commander at Fort MacArthur had him see a psychiatrist at the base so that he could perform his duties there. In a December 2005 statement, he reiterated that he had been treated by a psychiatrist at Fort MacArthur, adding that he believed the treatment occurred around August or September 1968. In December 2012, the Veteran again reported that his company commander had requested psychiatric analysis to determine his fitness for duty around August or September 1968. In March 2013, the Veteran again stated that he received psychiatric treatment in service due to concerns of his company commander and first sergeant regarding his mental stability shortly after his reporting for duty around September 1968. He suggested that records regarding such treatment should be in his service treatment or service personnel records and requested that a search be made for these records. The RO requested the Veteran's complete service medical and dental records in November 2005. The RO also requested the pages from the Veteran's personnel file showing his unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations, and official travel outside the U.S. The National Personnel Records Center (NPRC) responded in January 2006 that the Veteran's service treatment records had previously been furnished. The NPRC did provide the requested service personnel records. While the service treatment records document findings of a nervous stomach in July 1966 and April 1968, they are negative for psychiatric complaints or diagnoses. [Parenthetically, the diagnosis of a nervous stomach appears to relate to gastrointestinal, as opposed to psychiatric symptoms, as the Veteran reported in April 1968 that he had experienced stomach trouble since age 12 and acute gastrointestinal symptoms when he was upset or ate spicy foods.] The service personnel records provided in January 2006 also make no mention of psychiatric treatment; however, the NPRC furnished only a copy of the four page DA Form 20, Enlisted Qualification Record. In light of the Veteran's assertions that he received in-service psychiatric treatment to evaluate his fitness for duty, the Board finds that his complete service personnel records should be requested on remand. See 38 C.F.R. § 3.159(c)(2). Additionally, in his September 2005 claim for service connection, the Veteran reported that he was currently a risk analyst for mortgage securities, but could barely work due to an inability to concentrate and analyze documents. A June 2006 VA mental health treatment record reflects that the Veteran stopped working one month earlier as he was having difficulty concentrating and he was considered not up to doing his work. He reported that he had requested disability from VA and was going to request Social Security disability. The diagnosis was depressive disorder. During VA mental health treatment in January 2007, the physician noted that the Veteran had "applied for Sosical Securit [sic], and he is going to be evaluated for PTSD service connected." The March 2012 VA examination report reflects that the Veteran reported that he was not currently working due to disability related to heart conditions. While Social Security Administration (SSA) records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). The June 2006 and January 2007 VA mental health treatment records suggest that the Veteran's claim for Social Security disability benefits may have been based, at least in part, on a psychiatric disorder. However, the March 2012 VA examination report suggests that such claim may have been related to heart disorders. Accordingly, on remand, the AMC/RO should ask the Veteran to clarify whether he has filed a claim for Social Security disability benefits based, at least in part, on a psychiatric disorder. If so, the SSA records should be requested. Finally, additional notification action, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), is warranted. While a November 2005 VCAA letter advised the Veteran of the information and evidence necessary to substantiate his claim for service connection for PTSD, in light of the of the recharacterization of the claim, he should be furnished VCAA notice regarding the expanded claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim for service connection for a psychiatric disorder, to include PTSD, major depressive disorder, dysthymic disorder, anxiety disorder, and adjustment disorder. 2. Request a complete copy of the Veteran's service personnel records. 3. Ask the Veteran to clarify whether he has filed a claim for Social Security disability benefits based, at least in part, on a psychiatric disorder. If so, obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits, as well as copies of all medical records underlying those determinations. 4. Forward the claims file to the psychologist that performed the March 2012 VA examination, if still available, for a supplemental opinion. In particular, this psychologist should clearly identify all psychiatric disorders present at any time since September 2005 (the date of the Veteran's claim for service connection), to include PTSD, major depressive disorder, dysthymic disorder, anxiety disorder, and adjustment disorder. For each identified disorder, the examiner should provide a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the disorder is a result or consequence of the Veteran's military service. A complete rationale for all opinions expressed should be set forth in the examiner's report. In determining whether the criteria for a diagnosis of PTSD in accordance with DSM-IV have been met at any time since September 2005 the examiner should consider and address the findings of PTSD in the VA treatment records, to include the April 2008 VA treatment record, documenting the Physician Assistant's opinion that the Veteran did have PTSD (discussed above). In rendering the requested opinion, the examiner should also consider and address the Veteran's reports of psychiatric symptoms in the mid-1980s, as documented in his September 2005 statement and a September 2005 VA mental health consultation. If PTSD is determined to have been present at any time since September 2005, the specific service-related stressor or stressors supporting that diagnosis should be identified (whether verified or not). The examiner is asked to render an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that PTSD is related to the Veteran's fear of hostile military or terrorist activity. If, for whatever reason, it is not possible to have this same examiner provide this additional comment, then have someone else do it that is qualified to make these necessary determinations. In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or whether, instead, the necessary additional responses can be provided merely from reviewing the claims file. If further examination of the Veteran is deemed necessary, arrange for him to undergo this additional examination. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. Conduct any other appropriate development deemed necessary. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).