Citation Nr: 1328766 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 05-36 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active military service from January 1956 to December 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of February 2005. In September 2006, the Veteran testified at a hearing held at the RO before the undersigned. The appeal was previously remanded by the Board in August 2007 to obtain additional treatment records, and was remanded again in March 2009 to ensure compliance with the August 2007 Remand directives. This appeal was next remanded in December 2010 to obtain Social Security Administration (SSA) records and for issuing a notice letter pertaining to the issue of entitlement to service connection for a psychiatric disorder other than PTSD. In a decision/remand dated in May 2012, the Board reopened the previously denied claim for service connection for PTSD, and remanded the appeal for further development of the issue of service connection for an acquired psychiatric disability, to include PTSD. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, this appeal must be remanded yet again, because the examination obtained in June 2012, pursuant to the May 2012 remand, is completely inadequate. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the Veteran is entitled to substantial compliance with the Board's remand directives); see also Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required). The requested examination was to "determine the nature, extent, and etiology of any diagnosed psychiatric disorder, to include PTSD, that he may have." Among the deficiencies which prevented accomplishment of this goal was the complete disregard of the following instruction: "Psychological testing should be conducted with a view toward determining whether the Veteran meets the criteria for a diagnosis of PTSD or any other psychiatric disability." No psychological testing was conducted in conjunction with this examination, nor was an explanation provided as to why this was omitted. In fact, records obtained pursuant to the May 2012 remand included July and September 2010 reports of psychological testing conducted in July 2010. These records were not available to the Board at the time of the May 2012 remand, but were part of the record at the time of the June 2012 VA examination. However, the examiner did not refer to this testing, or in any way indicate that the psychological testing reports had been reviewed and considered in her opinion, let alone explain why no additional testing was necessary. Psychological testing was again undertaken in December 2012, after the VA examination, and summarized in the April 2013 supplemental statement of the case. However, it should be emphasized that the deficiency here is that the examiner did not review or discuss any psychological test reports. The examiner ignored the existence of those reports entirely and failed to obtain the testing ordered in the remand. Moreover, the RO did not refer the December 2012 psychological test report to the examiner for an addendum. The remand instructions also included the following: "The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed PTSD or other psychiatric disability shown on examination had its clinical onset in service or is otherwise related to service." Here, the examiner found that a psychiatric disorder was not present, and so did not offer an opinion as to etiology. The examiner was also directed as follows: "A complete rationale should be given for all opinions and conclusions expressed." The examiner did not provide any explanation for why she found no psychiatric disorder to be present. As to these instructions for a "detailed history" and "complete rationale," the examiner reported that the Veteran retired in 1961, despite ample evidence of record showing he retired in July 1990. The examiner said that the Veteran reported no currently ongoing struggles with mental health, ignoring the August 2011 mental health treatment record visit that was for, among other things, medication management. Although the examiner said that she reviewed the claims file, all she mentioned in the report were three VA mental health evaluations from April 2010 to August 2011. The examiner did not otherwise allude in any way to the extensive psychiatric history contained in the VA treatment records on file, dating back to 1990. While the claims file consists of 5 volumes, the most pertinent records were conveniently marked with labeled tabs. The examiner said that the August 2011 assessment included depression NOS, stable with treatment, but failed to include the global assessment of functioning (GAF) score of 38 reported at the same time. While the examiner is not obligated to find a mental disorder to be present, a GAF score of 38 reported less than a year before her examination of the Veteran finding no psychiatric disorder calls for an explanation as to why her findings were sufficient to outweigh not only that report, but the extensive psychiatric history. A VA outpatient mental health assessment in August 2012, two months after the VA examination, resulted in Axis I diagnoses of Depressive Disorder, NOS, and Cognitive Disorder, NOS, and a GAF of 50; this casts further doubt on the thoroughness of the June 2012 VA examination. To clarify, an examiner is not required to discuss every piece of evidence in the record. However, the statements that the examiner makes should at least be reasonably consistent with the evidence contained in the claims file that he or she reports to have reviewed. Here, the examination report is so at odds with the evidence of record that the Board finds that another VA examination is warranted. Additionally, if the next examiner concludes that a psychiatric disorder is not present, despite a documented history of psychiatric treatment and diagnoses over more than two decades, that examiner must be prepared to buttress that conclusion with a thorough explanation. Psychological testing, ordered in the remand, and rendered even more important by the examiner's conclusion, has not been accomplished. No explanation of this failure was provided, nor was there any indication that the prior examiner reviewed and considered the July and September 2010 psychological test reports, which would have been the only potentially justifiable explanation for failing to comply with a direct remand order. In light of the June 2012 examiner's conclusion that no psychiatric disorder was present, it must also be stressed that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). If the next examiner does not find a psychiatric disorder to be present, an opinion as to the etiology of the psychiatric disabilities noted during the pendency of the appeal must be provided. Because of the inadequacy of the examination, the new examination must also address the question of whether the Veteran has PTSD related to any inservice stressors. The Veteran testified at his hearing that he volunteered to rescue people during the Suez crisis. A printout from DPRIS dated in April 2010 shows that the USS CORAL SEA was ordered to assist in the Suez crisis from October 1956 to November 1956, and the Veteran's personnel records show that he was stationed on board the USS CORAL SEA during this time period. Accordingly, the evidence does potentially support a stressor of being involved in the Suez crisis. The Veteran also testified that he witnessed airplanes crash while aboard the USS CORAL SEA; he said there were about 11 of them, around the time of the Suez crisis. He said that he recalled seeing two servicemen killed and helping to clean the flight deck after planes crashed. Evidence received from the representative in March 2012, from articles, blogs, and forums on the internet, confirms an airplane crash in which the landing aircraft crashed into unoccupied airplanes on the ship. Additional research has disclosed that this accident occurred on September 8, 1956, and involved an AJ-1 Savage aircraft which, during an emergency landing, crashed into approximately 13 other aircraft on board the USS CORAL SEA. See "The AJ-1 Crash of September 8, 1956, USS Coral Sea," at http://skaneateles.org/navy/fitzpaddles.html. There were no deaths, although one crewmember was severely injured. The Veteran's personnel records confirm that he was stationed on board the USS CORAL SEA during the time period of the AJ-1 Savage crash. Notably, the Veteran's Navy rate at the time was Fireman Apprentice, and there was a small fire in the area of the jet engine which was extinguished by the crash crew. Therefore, the Board concedes the Veteran's claimed stressor of the reported plane crash on board the USS CORAL SEA that occurred on September 8, 1956, insofar as he witnessed it and helped with clean-up, but not as to witnessing any deaths. Otherwise, there are no verified stressors. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, by a psychiatrist, to determine whether he has an Axis I (under DSM-IV) acquired psychiatric disability, to include PTSD, which was at least as likely as not (50 percent or greater probability) of service onset, or related to events which occurred in service. The claims file must be made available to the examiner for review in conjunction with the examination. A detailed history should be elicited from the Veteran and the information in the claims file. Psychological testing need only be conducted if the VA psychological testing dated in July and September 2010 and December 2012 does not contain sufficient data for the examiner to reach an opinion. * In the opinion, the examiner should address all relevant evidence of record, including the following: The service treatment record dated July 14, 1958, in which the Veteran complained of a nervous reaction which he thought was primarily due to optic muscle repair in the left eye during early childhood, and the recommendation of an interview by a neuropsychiatric consultant (although there is no evidence that such consult ever took place). Please note that the question here is whether it is at least as likely as not that this represented the onset of a psychiatric disorder which continued after service and is related to a current acquired psychiatric disability. Even if due to a pre-existing optic muscle problem, the question is whether a psychiatric disorder itself was of service onset, regardless of cause. (NOTE: If the examiner believes that a psychiatric disorder preexisted service, this must be supported by an opinion which explains why such disorder clearly and unmistakably (undebatably) both preexisted and was not aggravated by service.) * Concerning whether the Veteran has PTSD due to any inservice stressor(s), the potential stressors claimed by the Veteran, and which may be considered to be verified, insofar as they may be consistent with his duties as a Fireman Apprentice, are: (1) his participation in the 1956 Suez crisis, to the extent that he was aboard the USS CORAL SEA, which was ordered to assist in the evacuation and protection of U.S. citizens during the Suez crisis from October to November, 1956; and (2) an airplane crash on board the USS CORAL SEA that occurred on September 8, 1956, insofar as he witnessed the aircraft land on the USS CORAL SEA and crash into approximately 13 unoccupied aircraft, and that he helped with clean-up (he was a Fireman Apprentice, and the accident caused a small fire that had to be extinguished by the crash crew). No deaths were shown, but the crewmembers sustained injuries, and one crewmember was seriously injured. * The opinion should also address whether any reported stressor is adequate to support a diagnosis of PTSD, based on fear of hostile military or terrorist activity. If so, the examiner should explain how the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. * Finally, if the examiner finds that an Axis I acquired psychiatric disability is not present, this must be adequately explained, in the context of the medical evidence of a lengthy psychiatric history. In addition, the opinions requested above still must be provided, with respect to any diagnosed psychiatric conditions shown between April 2002 and the present. A rationale (explanation) for all opinions reached must be provided. 2. After ensuring that the medical opinion is adequate, and assuring compliance any other notice and development action required by law, the RO/AMC should readjudicate the claim for service connection for an acquired psychiatric disability, to include PTSD. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and afforded an opportunity to respond, before the appeal is returned to the Board. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).