Citation Nr: 1327277 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-39 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The appellant served on active duty (AD) in the United States Air Force from April 1974 to September 1974 and on various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Army National Guard from 1990 to 2008. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania denied service connection for tinnitus and the reopening of a previously denied claim for service connection for an acquired nervous disorder. The appellant testified in support of this claim during a hearing held before the undersigned Veterans Law Judge in July 2010. In October 2010, the Board affirmed the RO's denial of service connection for tinnitus, reopened the claim for service connection for an acquired nervous disorder and remanded that claim to the RO for additional action. The Board characterized the remanded claim broadly to encompass all psychiatric disorders pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for service connection for one psychiatric disorder should encompass claims for service connection for all psychiatric disabilities). In July 2012, the Board recharacterized the claim on appeal specifically to include service connection for PTSD and remanded that claim to the RO for additional action. In the Introduction section of that decision, the Board referred a claim of service connection for hearing loss to the RO. To date, the RO has not taken any action in response to the referral; therefore, the Board again REFERS the matter to the RO for appropriate action. VA's paperless claims processing system (Virtual VA) reveals additional documents pertinent to this claim, which, on remand, the RO associated with the claims file in hard copy form and considered in support of this appeal. 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 Additional clarification is required from the VA mental disorders examiner who conducted the July 2011 examination and who authored addenda in November 2011 and August 2012. The RO/AMC will therefore return the claims folder to the VA examiner for compliance with the directives below Accordingly, the case is REMANDED for the following action: 1. Contact VA physician J.A.B., who authored the March 2012 VA "security prescription form" and request that he provide the medical basis and clarification as to his observation that the Veteran "appears to have symptoms of PTSD related to his military experiences." IN PARTICULAR, request that if he is rendering such a diagnosis, he provide information as to the basis of this information consistent with the diagnostic criteria as set out in the current edition of the Diagnostic and Statistical Manual. 2. Return the VA claims folder, and a copy of this remand, to VA examiner L.L.V.R., M.D. Provide the following information and request to the examiner. Please review the examination report of July 2011 and your addenda of November 2011 and August 2012. In these reports, you have noted the Veteran had numerous instances of mental trauma which he sustained prior to his active military service from April 1974 to September 1974. However, while you have cited these instances and expressed an opinion that the Veteran had mental difficulties prior to service because of these traumas, and that there is no military causation for his current mental disorders, your opinion is not sufficiently responsive to the relevant legal criteria that VA must apply. The Veteran's February 1974 pre-service physical examination detected no mental disorders or symptoms. The law therefore presumes that at the time he was examined and accepted for active service, he was in sound mental condition unless "clear and unmistakable evidence" exists that he had a mental disorder which pre-existed service. By "clear and unmistakable" is meant that which is "undebateable"- it cannot be misinterpreted or misunderstood. Further, the law requires that if the Veteran had such a pre-existing mental disorder, VA must determine whether there is such "clear and unmistakable" evidence that the disorder WAS NOT aggravated by his military service? Please therefore respond to these questions, with a full explanation of the bases of your opinion: a. Is it factually and medically undebateable that at the time the Veteran was examined and accepted for active military service, he had a pre-existing mental disorder? Why or why not? b. If it is factually and medically undebateable that he had such a pre-existing mental disorder, WHAT WAS THE DIAGNOSIS OF SUCH DISORDER? c. If you find that the Veteran clearly and unmistakably had such a pre-existing mental disorder, IS THERE ALSO CLEAR AND UNMISTAKABLE EVIDENCE THAT THIS DISORDER WAS NOT AGGRAVATED (I.E.. WORSENED) by such service? In particular, you are requested to analyze both the in-service event of the Veteran apparently overdosing on prescribed Valium provided to him for a headache; and the post-service mental symptoms and hospitalizations within one to three years after the Veteran's military service. If the examiner who authored the July 2011 examination and its November 2011 and August 2012 report is no longer employed by VA, conduct another VA examination with review of the claims folder to respond to the above inquiries. 3. After completion of these remand directives, review the report and undertake any other appropriate development. If the claim is not decided favorably to the Veteran, issue a Supplemental Statement of the Case and return the file to the Board for further proceedings. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ Vito A. Clementi 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).