Citation Nr: 1319967 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 94-25 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder. REPRESENTATION Appellant represented by: Diane Sapp, Esq. WITNESSES AT HEARING ON APPEAL Veteran and R.G. ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to August 1983, and from January 1986 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal was certified to the Board by the RO in Milwaukee, Wisconsin. In a January 2007 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The January 2007 Board decision with regard to the above-captioned issue was vacated and remanded by the Court by way of a January 2009 Memorandum Decision. In a November 2012 decision, the Board denied entitlement to service connection for PTSD, and remanded the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, for additional development. The case has been returned to the Board for further appellate consideration. The appeal is remanded to the RO. REMAND This appeal was previously before the Board in November 2012, at which time the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, for additional development. In the November 2012 remand, the Board noted that in June 2012, the Board remanded the Veteran's claim for entitlement to service connection for a psychiatric disorder to the RO for additional development, including a VA examination addressing the etiology of the Veteran's psychiatric disorders. Although the August 2012 VA examiner provided a clear and thoroughly supported opinion with regard to the Veteran's PTSD, the examiner did not consider or explain whether the Veteran had any other psychiatric disorders and their etiology, particularly in light of the numerous other psychiatric diagnoses in the claims file. Accordingly, the Board directed that the RO should provide the Veteran with a new VA mental disorders examination. In that regard, the Board observed that there are numerous psychiatric diagnoses of record, including mood disorder, major affective illness, depression, panic disorder, and major depressive disorder. Although the Veteran's service treatment records do not reflect that a psychiatric disability was noted at service entrance for either period of active duty service, some of the evidence in the claims file suggests that the Veteran may have had a psychiatric disorder prior to active duty service. This evidence includes private treatment records from September 1983, prior to the Veteran's second period of active duty service. Accordingly, the Board instructed that the VA examiner should also provide an opinion as to whether any of the Veteran's diagnosed psychiatric disorders existed prior to his active duty service, and if so, whether the disorder was aggravated thereby. As the Veteran had two periods of active duty service, the examiner was requested to determine whether any diagnosed psychiatric disorder existed prior to either period of active duty service. The Board directed, in pertinent part, that the Veteran must be afforded a new VA mental disorders examination to determine whether any currently diagnosed psychiatric disorders, to include mood disorder, major affective illness, depression, panic disorder, and major depressive disorder are related to his military service. The Board indicated that the VA examiner must provide an opinion as to: (1) whether any of the Veteran's currently diagnosed psychiatric disorders are related to his active duty service; and (2) whether any of diagnosed psychiatric disorders pre-existed either period of his active duty service. If the examiner concluded that any diagnosed psychiatric disorders pre-existed his active duty service, the examiner was to provide an opinion as to whether it was aggravated beyond its normal progression by the Veteran's active duty service. The Board directed that the examiner must provide a complete rationale for all opinions provided. The Board stated that if the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Further, the Board directed that the examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. In December 2012, the Veteran underwent a VA mental disorders examination and the examining physician provided an opinion in the examination report. However, review of the examination report reflects that it does not fully comply with the Board's instructions in the November 2012 remand for the reasons explained below. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the RO must obtain a supplemental opinion from the VA examiner who conducted the December 2012 examination. The December 2012 examination report indicates that the Veteran now has a diagnosis of personality disorder, not otherwise specified. The examiner remarked that this diagnosis is based on extensive review of the records. As with the last two examinations, the Veteran's self-report cannot be deemed credible, due to very strong evidence that he is over-reporting symptoms and has over-reported symptoms at his last three VA examinations. With regard to the requested opinions, the examiner indicated that it is impossible to answer the posed questions without resorting to mere speculation. The Board notes that the examiner provided a clear explanation for the reasons why an opinion would require speculation, including the fact that it is not possible to determine the credibility/accuracy of the "substantial" diagnoses found in the Veteran's records and the only diagnosis that seemed to hold up across all information found in the Veteran's records, including the inconsistencies, is personality disorder. However, the Board notes that the examiner failed to explicitly indicate whether there was any further need for information or testing necessary to make a determination and whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Accordingly, the RO should obtain a supplemental opinion from the VA examiner who provided the December 2012 VA examination concerning the Veteran's claimed acquired psychiatric disorder, and request that the examiner indicate whether there was any further need for information or testing necessary to make a determination and whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Additionally, the Board notes that the RO most recently considered the claim currently on appeal, for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, in a February 2013 supplemental statement of the case. Since that time, additional evidence has been associated with the claims file which is pertinent to the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, other than PTSD. This evidence includes the report of a February 2013 examination from the Veteran's private psychiatrist, Dr. K.G.B., and additional private treatment reports dated through December 2012. The Board notes that in addition to the Axis I diagnoses that were previously rendered by Dr. K.G.B. and contained in the evidence of record, the February 2013 examination report includes an additional diagnosis of rule out major depressive disorder. This evidence has not previously been considered by the RO in the adjudication of the Veteran's current claim, and the Veteran did not waive his right to have the evidence initially considered by the RO prior to the Board's readjudication of his appeal. To the contrary, in a March 2013 statement submitted on the February 2013 supplemental statement of the case Notice Response Form, the Veteran, through his representative, requested that the RO "hold off on doing anything" until the representative could submit the final report from Dr. K.G.B. Under these circumstances, the Board must remand this matter to the RO for consideration of the claim in light of the additional evidence received, in the first instance, and for issuance of a supplemental statement of the case reflecting such consideration. See 38 C.F.R. § 19.37 (2012). Accordingly, the case is remanded for the following action: 1. The RO must return the Veteran's claims file to the VA examiner who provided the December 2012 VA mental disorders examination concerning the Veteran's claimed acquired psychiatric disorder, other than PTSD, and request clarification as to whether there was any further need for information or testing necessary to make a determination and whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. With regard to the examiner's conclusion that it is impossible to answer the posed questions without resorting to mere speculation, the examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. If the examiner who performed the December 2012 VA mental disorders examination is no longer available, the Veteran must be afforded a VA mental disorders examination, to determine whether any currently diagnosed psychiatric disorders, to include mood disorder, major affective illness, depression, panic disorder, and major depressive disorder are related to his military service. The claims file, to include a copy of this remand, and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. All necessary special studies or tests, including psychological testing and evaluation, must be accomplished. The examiner must discuss and integrate the substantial previous psychiatric findings and diagnoses of record with any current clinical findings to obtain a true picture of the nature of the Veteran's psychiatric status. After a thorough review of the evidence of record, to include the statements of the Veteran, the VA examiner must provide an opinion as to: (1) whether any of the Veteran's currently diagnosed psychiatric disorders are related to his active duty service; and (2) whether any of diagnosed psychiatric disorders pre-existed either period of his active duty service. If the examiner concludes that any diagnosed psychiatric disorders pre-existed his active duty service, the examiner must provide an opinion as to whether it was aggravated beyond its normal progression by the Veteran's active duty service. The examiner must provide a complete rationale for all opinions provided. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the 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 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing all appropriate development, the RO must readjudicate the claim. In so doing, the RO must consider the claim in light of all pertinent evidence of record, including the additional evidence received since the issuance of the February 2013 supplemental statement of the case. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ JOY A. MCDONALD 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).