Citation Nr: 1323593 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-00 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include psychosis. REPRESENTATION Appellant represented by: Mr. Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active military service with the United States Army from February 1969 to February 1971, to include a tour of duty in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from a November 2011 Order by the United States Court of Appeals for Veterans Claims (Court), which endorsed a November 2012 Joint Motion for Remand, vacated a March 2012 Board decision denying entitlement to service connection an acquired psychiatric disorder, other than PTSD, and remanded the matters for action complying with the joint motion. The matter was initially on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in pertinent part, denied the reopening of the claim for service connection for PTSD. In a January 2010 decision, the Board declined to reopen the previously denied claim for service connection for PTSD, and remanded the claim for service connection for a psychiatric disability other than PTSD for notice and initial consideration of the issue. The Veteran did not appeal the Board's denial to reopen his previously denied claim for service connection for PTSD, and that decision is final. 38 C.F.R. § 20.1104. When the claim for service connection for acquired pyshciatric disorders, other than PTSD, returned to the Board in March 2012, the Board denied the claim. The Veteran appealed the denial, giving rise to the Joint Motion and Court Order that have returned the matter to the Board. It appears that the Veteran seeks to reopen his previously denied claim for service connection for PTSD, as he has submitted additional medical evidence in support of a nexus between his diagnosed PTSD and his reported fear of hostile military activity while he served in Vietnam. Also, the Veteran has submitted a formal claim for entitlement to a total disability rating due to individual employability (TDIU). These issues been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 As noted above, the matter on appeal was remanded by the Court for action in compliance with the instruction in the joint motion. Based on review of the claims folder, the Board finds that additional development is in order prior to adjudication of the matter. The parties to the November 2012 Joint Motion for Remand determined that the Board failed to provide adequate reasons and bases for why a VA psychiatric examination was not warranted to decide the claim. In particular, the parties identified an April 2007 VA mental health treatment note, in which the VA provider indicated that the Veteran's current psychosis, to include schizoaffective disorder, was "exacerbated by traumatic Vietnam experiences." The parties found that the Board failed to fully discuss why the April 2007 VA treatment did not indicate a relationship between the Veteran's current diagnosis and his period of service. The Board notes that following the November 2012 Court Order and Joint Motion for Remand, the Veteran has submitted additional evidence in support of his claim. The record now contains the report of an April 2013 private medical evaluation by Dr. PO, a clinical psychologist, which contains a positive medical opinion finding that the Veteran had psychosis manifested to 10% within first year of service that was masked by his substance abuse problems. Although the clinical psychologist noted that her medical opinion was based on the findings obtained from a review of the record and a clinical interview of the Veteran, she failed to provide an adequate rationale in which she fully addressed the pertinent medical evidence of record that weighed against a favorable nexus opinion. Moreover, assignment of an evaluation under the Schedule is the responsibility of the finder of fact, not the examiner. The adjudicator is charged with interpreting the competent and credible evidence of record as whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2. While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. Accordingly, the private opinion that the allegedly manifested psychosis was compensable during the first post-service year is not determinative. VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. 38 U.S.C.A. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that a VA psychiatric examination is needed. Given the parties' contentions, as well as the additional favorable, but inadequate, medical evidence contained in April 2013 private evaluation report, a VA examination is necessary to determine whether the Veteran has an acquired psychiatric disorder, to include psychosis, with causal origins in service, or, if manifesting as a psychosis, within the first post-service year. A clearer picture of what symptomatology may be attributed to any psychosis during that period will also be helpful. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should seek the Veteran's assistance in obtaining any outstanding pertinent medical treatment records. If any identified records cannot be obtained, a memorandum should be included in the file explaining the procedures undertaken to attempt to find the records and indicating why such attempts were not fully successful. 2. Schedule the Veteran for a VA mental disorders examination. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include psychological testing, if deemed warranted) should be accomplished (with all findings made available to the examiner prior to completion of the report), and all clinical findings should be reported in detail. After a review of the claims folder and consideration of the findings from clinical examination, the examiner should: a) Identify all currently diagnosed acquired mental disorders, as well as offering an opinion as to appropriately diagnosed conditions during and immediately following active duty service. b) For each diagnosed disorder, is it at least as likely as not (50 percent or greater probability) that the psychiatric disorder, was caused or aggravated by service? If any diagnosed condition is categorized as a psychosis, the examiner must clearly state whether that condition was first manifested during the first post-service year. The findings of Dr. PO must be addressed. c) If a psychosis was first manifested during the first post-service year, the examiner must, to the greatest extent possible identify all signs and symptoms of such and describe the functional impairment attributable to the psychosis during that period. If such cannot be separated from attributes of other diagnoses, please clearly so state. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing the requested action, and any additional notification and/or development deemed warranted, the RO/AMC should re-adjudicate the claims on appeal in light of all pertinent evidence and legal authority. If the benefit sought remains denied, the RO/AMC should furnish the Veteran and his representative with a supplemental statement of the case and afford the applicable time period during which the Veteran can respond. Thereafter, the RO/AMC should return the case to the Board for further appellate consideration. 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).