Citation Nr: 1329160 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 08-14 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include a depressive disorder, an anxiety disorder, and/or gender identity disorder (GID). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a Veteran that served on active duty from April 1971 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2006 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In the October 2006 rating decision, the RO denied service connection for gender identity disorder. In the May 2009 rating decision, the RO denied service connection for PTSD. In August 2012, the Veteran presented testimony before the undersigned Acting Veterans Law Judge during a hearing held at the RO. A transcript of the hearing has been associated with the record. This case was before the Board in October 2012 and has been returned for review by the Board. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2; see 38 C.F.R. § 19.9. Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). In this case, in October 2012, the Board remanded the issue for a new VA examination, noting the Veteran's in service correspondence regarding her sexual orientation as well her post service statements and medical history. The Board requested an examination and opinion regarding the etiology of the Veteran's diagnosed psychiatric disorders, including PTSD and GID. The Board finds that the VA examiner did not provide complete rationale for his opinion regarding the etiology of the Veteran's claimed psychiatric disorders. In March 2013, a VA physician provided an addendum to his September 2010 examination. This physician found that the Veteran did not meet the criteria for PTSD. In regard to GID, the examiner was unable to state whether the Veteran had a pre-existing disorder, but found that it was not aggravated by military. However, the VA examiner failed to explain why he is unable to determine whether or not the Veteran did not enter service with a pre-existing psychiatric disorder. He does not refer to any pre-service history, either reported by the Veteran nor does he refer to objective medical evidence found in the claims file. It is not clear if he is unable to come to a conclusion because this determination is based on a lack of pre-service medical records or statements made by Veteran in terms of her pre-service history. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the United States Court of Appeals for Veterans Claims (Court) determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The VA examiner also found that the Veteran's GID was unrelated to military service. He based his rationale on the fact that he did not find enough proof in the service treatment records (STRs) that any type of psychiatric disorder was related to military service. In this regard, VA will grant service connection for disorders that, in many cases, are either asymptomatic or cause no functional impairment. Therefore, the lack of any symptoms or functional impairment, by themselves, are not a sufficient explanation for the March 2013 VA examiner's finding that the Veteran did not have a psychiatric disorder, especially in light of evidence in her personnel records regarding her gender identity concerns. Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that that a medical opinion is inadequate when it is unsupported by clinical evidence). Moreover, because, the Veteran has received other psychiatric diagnoses besides PTSD and GID, namely, of depression disorder not otherwise specified (NOS), anxiety, as well as alcohol and cocaine abuse in remission, comment is needed on the etiology of these other diagnoses, but especially in terms of their possible relationship with the Veteran's military service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009), The Court has held that the Board is obligated by law to ensure that the AMC complies with its directives; and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In this case, the Board finds that the issue must be remanded again in order to ensure compliance with the mandates of the October 2012 remand. Id. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an opportunity to submit or identify any additional evidence relevant to her service connection claim for a psychiatric disorder. With appropriate authorization from the Veteran, obtain and associate with the claims file any additional private treatment records pertinent to the Veteran's claim. Any outstanding VA records pertinent to the claim on appeal should be obtained and associated with the claims file. 2. The RO/AMC shall forward the claims file to a VA physician (different from the one that performed the September 2010 and Match 2013 examination of the Veteran). An opinion must be obtained concerning: (a) Whether the Veteran meets the DSM-IV diagnostic criteria for a PTSD diagnosis? If so, is the diagnosis based upon the claimed in-service stressors or post-service stressors? (b) Whether the Veteran's claimed PTSD or any other diagnosed psychiatric disorder, to include diagnosed gender identity disorder, is the result of any in-service incident, including military sexual trauma? (c) Whether the claimed psychiatric disorder, to include gender identity disorder, preexisted service; and whether any preexisting psychiatric disorder was aggravated during service? Because the Veteran is competent even as a lay person to report her state of mind in regard to her gender status, the examiner must specifically address the Veteran's report of any manifestation during her active service in determining whether a pre-existing disorder was chronically aggravated during her service beyond the condition's natural progression. See Dalton, supra. If at all possible, this examiner is asked and encouraged to try and provide some definitive comment on this determinative issue of causation, rather than merely stating he or she cannot provide this opinion without resorting to speculation. If, however, this is the examiner's only recourse (unable to provide this requested opinion without resorting to speculation), then he or she needs to discuss or explain why this requested opinion cannot be provided so that it is certain no additional comment is possible based on the available evidence or evidence that is obtainable. It may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed to make this remaining determination. Whoever is designated to provide this additional comment must discuss the rational of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. To facilitate providing this additional comment, it is imperative the designated examiner review the claims file for relevant medical and other history. Review includes considering this remand. *If reexamination is necessary, the Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 3. Readjudicate the Veteran's claim of entitlement to service connection for a psychiatric disorder. If any action taken is adverse to the Veteran, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate opportunity to respond. The Veteran 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). _________________________________________________ KELLI A. KORDICH 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).