Citation Nr: 1328422 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 06-03 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1978. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for PTSD and pseudofolliculitis barbae. The Veteran appealed. In January 2010, the Board remanded the Veteran's claims to the Appeals Management Center (AMC) for further development. Thereafter, in a rating decision issued in May 2012, the AMC granted service connection for pseudofolliculitis barbae. Consequently, the benefits sought on appeal as to that disability have been granted in full and there is no further action that need be taken by the Board as to that issue. The Board does, however, continue to have jurisdiction over the remaining issue as listed on the title page. The Board remanded the case for a second time in February 2013. As discussed in more detail below, the Board finds there was not substantial compliance with its remand order. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran was scheduled for two hearings before the RO in March 2008 and November 2010. The Veteran failed to appear for the March 2008 hearing, which the Board noted was due to the hearing notice being sent to the wrong address. Part of the January 2010 remand was to provide the Veteran with another opportunity for a hearing. On remand, a hearing was scheduled at the RO in November 2010, but the Veteran cancelled it. The Veteran has not requested another hearing and therefore, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). A review of the Virtual VA paperless claims processing system reveals the Veteran's appellate brief and medical records from the Birmingham VA Medical Center (VAMC) from May 2010 to January 2012. The VBMS paperless claims system does not contain any additional documents pertinent to the present 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 The Board finds the Veteran's claim must be remanded for additional development prior to adjudication. Pursuant to the Board's February 2013 remand, the Veteran was afforded a VA mental health examination in June 2013. See 38 C.F.R. § 3.159(c)(4). The examiner stated it was more likely than not that the Veteran's various prior mental health diagnoses reflected different interpretations of the Veteran's symptoms as opposed to separate and distinct disorders or a significant progression of a mental illness. The Veteran was diagnosed with schizoaffective disorder, bipolar type. The examiner stated there was "no record" that the Veteran had a mental illness while in the military, except for a February 1978 notation in his service treatment records (STRs), which showed he was counseled for personal problems and referred to a chaplain. It was the examiner's opinion that "[i]t is as least as likely as not that Veteran could have developed current mood/psychotic symptoms in the absence of reported military stressors." The examiner discussed the Veteran's claims of stressful events he experienced while in the military and found the Veteran had a tendency to reexperience childhood abuse. However, the examiner did not relate these childhood and military incidents to the Veteran's current diagnosis of schizoaffective disorder, bipolar type. The examiner found no diagnosis of PTSD and no events described by the Veteran to be related to a fear of hostile military or terrorist activity. It is necessary to obtain clarification from the June 2013 VA examiner. In providing an opinion on whether or not the Veteran's schizoaffective disorder, bipolar type had its onset in-service, the examiner provided a confusing opinion that utilized the term "could." A physician's statement framed in terms such as "could" is not sufficient to provide a basis to resolve a service connection claim. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). Upon remand, the examiner should clearly and precisely state whether it is at least as likely as not that the Veteran's currently diagnosed schizoaffective disorder, bipolar type had its onset in-service or is otherwise related to service. Additionally, the examiner stated there was "no record" that the Veteran suffered from a mental illness while in the military, except for the February 1978 STR note. However, the record contains numerous statements from the Veteran that his current mental illness began in-service. See Veteran's Application for Compensation and/or Pension, February 2004 (PTSD began in 1977); see also Birmingham VAMC, February 2004 (Veteran reports mental health symptoms began in-service in February 1978 when he was going through a divorce and was referred to a chaplain for counseling); Veteran's Statement, May 2004 (mental health issues have existed since he was on active duty). The Veteran claims that he was affected mentally due to "threats" and assaults from his drill instructor. See Veteran's Statements, February 2004 and May 2004. The Veteran also claims he saw a recruit cut his wrists in an attempted suicide and witnessed another recruit shoot himself on the rifle range. Id. The Veteran also reports that his military occupation with the military police was stressful. Id. The record contains a statement from the Veteran, wherein he describes discovering his wife cheating on him while he was in the service and his subsequent divorce and separation from the military. See Tuscaloosa VAMC, August 2005. Since experiencing all of these events in- service, the Veteran claims he has suffered from mental health issues. See Veteran's VA Form 9, January 2006; see also Veteran's Statement, August 2011. There is also evidence in the record that the Veteran's current diagnosis of schizoaffective disorder, bipolar type may be related to childhood trauma or his history of alcohol and drug abuse. See Birmingham VAMC, February 2004 (Veteran states the only trauma he experienced during service was military strictness; Veteran describes his family as "violent"; Veteran has suffered from PTSD for 20 years due to childhood abuse); see also Birmingham VAMC, April 2004 (Veteran's father beat him as a child; diagnosis of PTSD secondary to childhood abuse); Tuscaloosa VAMC, September 2005 (Veteran describes a violent childhood incident involving his father). Upon remand, the VA examiner's rationale must address the Veteran's lay statements regarding the onset of his mental illness in-service and the continuation of the disorder to the present, his claims of stressful in-service events, including his divorce, and his related history of childhood physical abuse. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301(2008) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). VA has a duty to obtain relevant medical treatment records. See 38 C.F.R. § 3.159(c) (2012). Upon remand, the RO should obtain updated medical treatment records from the Birmingham and Tuscaloosa VAMCs. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for any mental health issues since service. After securing the necessary release(s), obtain these records. In addition, obtain all of the Veteran's mental health treatment records from the Birmingham VAMC since January 2012 and the Tuscaloosa VAMC since March 2007. 2. After completion of the above, return the claims folder to the physician who examined the Veteran in June 2013, if available, for an addendum medical opinion (if that examiner is unavailable, a medical professional with appropriate expertise). The claims file and a copy of this remand should be made available to the examiner. The examiner should state clearly and conclusively whether is it at least as likely as not (i.e., probability of approximately 50 percent), that the currently diagnosed schizoaffective disorder, bipolar type had its onset in service or is otherwise related to service. In providing this opinion, speculative or inconclusive terms such as "may" or "could," must not be used. In his rationale, the examiner should address the significance of the following: the Veteran's statements that his mental health issues began in-service as a result of various events, including being threatened and assaulted by his drill instructor, seeing a recruit cut his wrists in an attempted suicide, witnessing a recruit shoot himself on the rifle range, discovering his wife was cheating, getting divorced and having a stressful occupation in the military police. The examiner should also address the Veteran's statements that his only trauma during service was military strictness, that he has a violent family and that he was physically abused by his father during his childhood. A complete and detailed rationale should be given for all opinions and conclusions expressed and should reflect consideration of all medical and lay evidence in the record. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 3. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MICHAEL MARTIN 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).