Citation Nr: 1326980 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-10 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2010, the Board denied the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Memorandum Decision, the Court found the Board had provided inadequate reasons and bases for its discussion on why it found the July 2008 VA examination report to be the most probative evidence. See slip opinion on page 2. In April 2012, the Board remanded the Veteran's claim. The agency of original jurisdiction (AOJ) continued the previous denial of the claim in an April 2013 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The Board remanded the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD for the RO to schedule the Veteran for a VA examination in order to determine the nature and etiology of his psychiatric disorder, to include whether the psychiatric disorder is related to service-connected bilateral hearing loss disability. The Veteran was afforded a VA psychological examination in March 2013. The VA examiner considered the Veteran's report of experiencing "death" and "noise" during service. However, she did not indicate whether the Veteran's stressor was related to fear of hostile military or terrorist activity. After examination of the Veteran, the VA examiner declined to diagnose the Veteran with an acquired psychiatric disorder. The examiner's rationale for declining to diagnose the Veteran with an acquired psychiatric disorder was based on her administration of the Structured Inventory of Malingered Symptomatology based on the Veteran's attempts at overreporting certain symptoms and vague responses. She reported that the Veteran's total score on the SIMS was significantly elevated above the recommended cutoff score for the identification of suspected malingering. She further noted that the Veteran endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders, raising the suspicion of malingering. Moreover, the Veteran had elevated scales measuring psychosis, neurologic impairment, amnestic disorders, low intelligence, and affective disorders. She also reported that when there is significant exaggeration or feigning of symptoms, it is impossible to determine what symptoms a person is truly experiencing and what symptoms they may truly have, with exaggeration of the severity of the symptoms it is impossible to determine what, if any, functional impairment there is a result of those symptoms without mere speculation. She was therefore unable to provide an opinion as to a mental disorder diagnosis. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In this case, although an acquired psychiatric disorder was not rendered during the March 2013 VA examination, the Board observes that the presence of an acquired psychiatric disorder, to include PTSD, has been noted during the appeals period. Specifically, May and August 2005 and October 2008 VA mental health records as well as a March 2012 VA opinion document diagnoses of PTSD. Furthermore, a June 2009 VA mental health record located in the Veteran's Virtual VA claims folder documents a diagnosis of generalized anxiety disorder. He was also diagnosed as having major depression in July 2006 and panic disorder in June 2012. Notably, there was no indication of malingering symptoms in the rendering of these diagnoses. There is no medical opinion of record of probative value which suggests a relationship between the Veteran's previously diagnosed PTSD, generalized anxiety disorder, major depression, and panic disorder and his military service. In light of the foregoing, the Board is of the opinion that a clarifying medical opinion would be probative in ascertaining whether the Veteran's previously diagnosed acquired psychiatric disorders are related to his military service, or alternatively his service-connected disabilities. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Schedule another VA psychiatric examination. The examiner is informed that the Board has tabbed multiple relevant records on the right side of the claims file, which address psychiatric complaints by the Veteran. The records dated in the 1970s pertain to a June 1974 automobile accident, wherein the Veteran sustained multiple injuries and reported psychiatric symptoms at that time, such as panic disorder and hyperventilation. The private medical records (non VA) are tabbed in green, and the VA medical records are tabbed in yellow. All appropriate tests and studies should be accomplished. The examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's previously diagnosed PTSD was caused by the stressor that has been corroborated, specifically the Veteran's service aboard the USS Oklahoma City. The examiner should also address whether it is at least as likely as not that the Veteran has PTSD due to the fear of hostile military or terrorist activity. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's previously diagnosed generalized anxiety disorder, panic disorder, major depression and any disorder(s) found on examination had their clinical onset during service or are related to any in-service disease, event, or injury. c. The examiner should also opine whether it is at least as likely as not that any previously diagnosed psychiatric disorder, to include PTSD, generalized anxiety disorder, panic disorder, major depression, and any disorder(s) found on examination are due to or aggravated (i.e., worsened) beyond the natural progress by the service-connected disabilities (e.g., tinnitus, hearing loss, hemorrhoids, and/or post operative right inguinal hernia). In essence, it is requested that the examiner consider whether the psychiatric symptoms manifested during the period of time covered by this claim, however diagnosed, began in or are related to service or are due to or aggravated by a service-connected disability. In this regard, PTSD has been noted in May and August 2005 and October 2008 VA mental health records as well as a March 2012 VA opinion document diagnoses of PTSD. Furthermore, a June 2009 VA mental health record located in the Veteran's Virtual VA claims folder documents a diagnosis of generalized anxiety disorder. The Veteran was also diagnosed as having major depression in July 2006 and panic disorder in June 2012. If the examiner cannot access the relevant VA treatment records through electronic means, the RO should ensure that he or she is provided with access to the records. A complete rationale must be provided for any opinions expressed. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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).