Citation Nr: 1320177 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-35 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), due to military sexual trauma (MST). ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The appellant served on active duty from September 1967 to September 1971. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) regional office in Louisville, Kentucky, which declined to reopen the appellant's previously denied claim of entitlement to service connection for PTSD. In June 2011 the Board remanded this claim for further development. In a January 2012 supplemental statement of the case, the RO determined that new and material evidence sufficient to reopen the previously denied claim for service connection for an acquired psychiatric disability, to include PTSD, had been received. The RO reopened the previously denied claim but denied the underlying de novo issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD. The case was again returned to the Board in April 2012 when the Board found that the December 2005 rating decision that denied service connection for PTSD is final and agreed with the RO that new and material evidence had been received sufficient to reopen the claim of service connection for an acquired psychiatric disability, to include PTSD. The claim on the merits, however, was remanded for additional development. The case is now again before the Board for further appellate consideration. A review of the appellant's Virtual VA electronic claims file shows that additional VA treatment records from multiple VA treatment facilities dating from 1997 through 2012 have been associated with record on appeal. The records were subsequently reviewed and considered by the Appeals Management Center (AMC) in a February 2013 supplemental statement of the case. 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 In April 2012, the Board reopened the appellant's claim for service connection for an acquired psychiatric disorder, to include PTSD, and remanded the claim on the merits for additional development, to include obtainment of a VA examination and opinion to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder, to include PTSD, and whether such had onset during or may be related to the appellant's military service and/or his alleged MST. Such examination was conducted in January 2013. Unfortunately, however, the examination is not adequate for adjudication purposes, and further remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Specifically, a review of the January 2013 VA examination report shows that the examiner appears to have interchangeably used the correct "at least as likely as not" legal standard and the incorrect "more likely than not" legal standard in ultimately concluding that the appellant does not have a current PTSD diagnosis and that his currently diagnosed depressive disorder not otherwise specified (NOS) and alcohol dependence were not incurred in or aggravated by his military service, to include his alleged MST therein. As to PTSD, the examiner found that the appellant did not meet the full criteria for diagnosis of PTSD as psychological testing completed during examination revealed mixed results with regard to clinically significant anxiety symptoms and significant alcohol and depressive symptoms were shown. She reasoned, in relevant part, that while the appellant was given the benefit of the doubt that his self-reported MST occurred, there is insufficient evidence or markers to support a "more likely than not" opinion in favor of the claim. She noted that a prior VA examiner's finding that the appellant's depression is a relatively recent development that occurred after many years of alcohol dependence weakens a "more likely than not" nexus to his military service and alleged MST. She stated that the appellant's self-report documented in a March 2005 treatment record to the effect that his problems with addiction started at age 13 when he took "uppers" that his father would give to his truck drivers, suggested that his addiction began at age 13 and his substance use/abuse may have started as early as age 13, which further weakens a "more likely than not" opinion as to any relationship between his alcohol dependence and depressive disorder and his military service and alleged MST. She further stated that given a through interview with the appellant and a review of the medical evidence, despite some past diagnoses and treatment for anxiety or PTSD, there is not enough evidence to support a "more likely than not" link to the appellant's reported MST. She stated that while her findings and opinions on examination are NOT to say that the reported MST did not take place or cause some stress as alleged, there is simply limited evidence to suggest a "strong linkage" between his current mental health state and his reported in-service stressor. Thus, given the lack of evidenced to suggest a "more likely than not" linkage, the examiner opined that the appellant's current alcohol dependence and depressive disorder disabilities were "less likely than not (less than 50 percent probability)" incurred during or are the result of his reported military stressor. The above excerpts demonstrate the January 2013 VA examiner's inconsistent use of the correct ("at least as likely as not") and incorrect ("more likely than not") legal standard in rendering her opinion; she interchangeably used a more onerous standard of "more likely than not," rather than the correct, less onerous legal standard of "at least as likely as not" actually applicable to the claim on appeal. Given the internal inconsistencies in the January 2013 examination report with application of both the correct and incorrect legal standards pertaining to the etiology of the claimed psychiatric disability, the January 2013 VA psychiatric opinion must be deemed inadequate and of no probative value in evaluating the claim on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination or opinion for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). In light of the above noted inadequacies in the January 2013 examination report, a remand for obtainment of an addendum opinion is required to allow the January 2013 VA examiner to provide a supplemental opinion for clarification of the January 2013 opinion pertaining to the etiology of the claimed disability using solely the correct and less onerous legal standard applicable to the claim on appeal of whether it is "at least as likely as not" (i.e., probability of 50 percent or greater) that the appellant has an acquired psychiatric disorder, to include PTSD, that was incurred in or is otherwise related to any incident of his military service, to include his alleged MST verses the erroneous and more onerous "more likely than not" legal standard frequently and inconsistently indicated in the January 2013 VA examination report and opinion. Ongoing VA treatment records relevant to the claim should also be obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. The appellant should be given an opportunity to identify any additional relevant medical and psychiatric treatment records, VA and non VA, which pertain to his claim for service connection for an acquired psychiatric disorder, to include PTSD due to alleged MST, that have not yet been associated with the claims folder. Regardless of the appellant's response, VA treatment records from all VA treatment facilities where he has sought treatment for an acquired psychiatric disorder, to include PTSD due to alleged MST, dating since April 2012, to specifically include any ongoing treatment records from the VA medical center in Lexington, Kentucky and associated clinics, as well as any other facility identified by appellant or in the record, must be obtained and associated with the claims folder. Appropriate steps should be taken to obtain any identified records and all attempts to obtain treatment records should be documented in the claims folder. 2. Then, return the claims file to the examiner who conducted the January 2013 VA PTSD examination, or if she is unavailable for any reason, to an examiner who is equally qualified to render an opinion as to the etiology of any currently diagnosed acquired psychiatric disability, to include PTSD due to alleged MST, using solely the correct "at least as likely as not" legal standard. This may require having the appellant reexamined, but this is left to the designee's discretion. If it is determined that a new psychiatric examination is necessary, this should be accomplished. The claims file, to include any relevant electronic treatment records contained in Virtual VA, and a copy of this Remand must be made available to and be reviewed by the reviewer in conjunction with providing the requested opinion. The report must indicate that the aforementioned records review was accomplished. The reviewer is asked to make the following determinations: a) Based on prior examination findings (see July and December 2009, March 2010, October 2011, and January 2013 examination reports), historical records, the appellant's contentions, and medical principles, the examiner must provide a diagnosis of any acquired psychiatric disorder found to be present, explicitly conforming to the DSM-IV. b) If PTSD is diagnosed, determine: (i) whether it is "at least as likely as not" (a 50 percent or greater probability) that the evidence demonstrates whether any behavioral changes in service could be regarded as indicative of the occurrence of sexual trauma; (ii) whether each stressor found to have actually occurred, by either the RO/AMC or in the reviewer's opinion, is "at least as likely as not" (a 50 percent or greater probability) sufficient to produce PTSD; and (iii) whether it is "at least as likely as not" (a 50 percent or greater probability) that there is a link between the current symptomatology and one or more of the established in-service stressors sufficient to produce PTSD. In making these determinations, the reviewer must acknowledge and comment on the lay evidence of record regarding the alleged reported in-service physical and sexual assault. Any opinions expressed by the reviewer must be accompanied by a complete rationale. c. If the examination results in psychiatric diagnoses other than PTSD (e.g., depression, bipolar affective disorder, dysthymic disorder, adjustment disorder, etc.), the reviewer should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is "at least as likely as not" (a 50 percent or greater probability) that any currently demonstrated psychiatric disorder, other than PTSD, had its onset during active service or is related to any in-service disease, event, or injury, including in-service physical and/or sexual assault. The term "at least as likely as not" means at least 50 percent probability. It does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Opinions should be provided based on the results of prior psychiatric examinations (or a current examination if found to be necessary), a review of the medical evidence of record, and sound medical principles. The reviewer must provide a rationale for the opinion provided and reconcile any opinion with any contradictory evidence of record. He/she should discuss the rationale for all stated opinions, whether favorable or unfavorable, based on the findings in VA treatment records and examination reports and obtained from review of the record, citing to specific evidence in the file, if necessary. If the reviewer is unable to offer the requested opinion, it is essential that he/she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, the claims folder should be reviewed to ensure that the foregoing requested development has been completed. The requested opinion must be reviewed to ensure that it is responsive to and in compliance with the directives of this remand and if not, corrective procedures should be implemented. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, the RO/AMC should readjudicate the issue on appeal in light of any additional evidence added to the record assembled for appellate review. If the benefit requested on appeal is not granted, the appellant and his representative, if any, should be furnished a supplemental statement of the case (SSOC), addressing all evidence obtained after the issuance of the February 2013 SSOC, and provide an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DAVID L. WIGHT 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).