Citation Nr: 1329625 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 06-04 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut 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, including major depression, bipolar disorder, and a mood disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which, in pertinent part, denied a claim of entitlement to service connection for PTSD. A Notice of Disagreement was received in September 2005; a Statement of the Case was issued in January 2006; and a VA Form 9 was submitted in January 2006. The Board remanded this matter in January 2009 and October 2010 for further development of the issues. Most recently, in September 2012, the Board denied the issue of entitlement to service connection for PTSD, and remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, including major depression, bipolar disorder, and a mood disorder. Thereafter, the Veteran appealed the Board's decision (i.e., the denial of PTSD) to the Court of Appeals for Veterans Claims (Court), and by a February 2013 Order, the Court remanded the matter for compliance consistent with a January 2013 joint motion for remand (JMR). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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 PTSD The Veteran contends developed an acquired psychiatric disorder, to include PTSD, in-service. His claimed stressors include the following: (1) witnessing the death of a fellow soldier by overdose; (2) involvement in a race riot; and (3) witnessing the death of a fellow soldier who was run over by a tank. To date, despite VA's numerous attempts verify the aforementioned incidents, the stressors remain unverified. The Veteran was afforded VA psychological examination in April 2011. At that time, the VA examiner found that he did not meet the DSM-IV criterion for PTSD; the examiner explained that while the Veteran reported re-experiencing his trauma in the form of nightmares, the nature, scope, and severity of his reported symptoms of avoidance and hyperarousal failed to meet the clinical threshold required for a diagnosis of PTSD. The examiner did not otherwise discuss, or attempt to reconcile the various PTSD diagnoses shown throughout the record. See, e.g., October 2003, May 2004, September 2004, December 2004, May 2005, September 2005, and April 2006 VA Treatment Records. The VA examiner instead found that the Veteran met the DSM-IV criterion for polysubstance abuse. The Board subsequently denied the Veteran's claim for PTSD based, in part, on the April 2011 examination findings which found that that the Veteran did not have a DSM-IV conforming PTSD diagnosis. See September 2012 Board Decision/Remand. In the February 2013 Order, the Court vacated and remanded the Board's decision, finding that the Board did not comply with 38 C.F.R. § 4.125, which requires the rating agency to return a report to an examiner to substantiate a diagnosis that does not conform to the DSM-IV. As such, on remand, the Veteran shall be afforded an additional VA psychiatric examination. The examiner must assess all current psychiatric disorders, to include but not limited to PTSD, depression, bipolar disorder, mood disorder and/or any other diagnosed disorder, in conformance with the DSM-IV, and determine the etiology thereof. Additionally, one of the Veteran's claimed stressors involves witnessing a fellow soldier die of a drug overdose in September or October 1973 at Fort Hood. See September 2005 Notice of Disagreement. Pursuant to the Board's previous remands, the RO was directed to verify the Veteran's reported stressor(s), to include by the Joint Services Records Research Center (JSRRC). A March 2011 Formal Finding found that there was insufficient information to send to the JSRRC; this finding was made after a February 2011 PIES inquiry, which specifically requested morning reports from the Veteran's unit, dated from November 1974 to December 1974. Again, the Veteran expressly reported that the overdose incident took place in September 1973 or October 1973, not 1974. As the stressor inquiry was based upon an inaccurate search request date, it is necessary to remand the claim in order for the RO to conduct additional searches pertaining to "Anderson" or "Andy" or "J.A.," who was assigned to Company A, 1st Battalion, 41st Infantry, Second Armored Division at Fort Hood, from September 1973 to October 1973. An Acquired Psychiatric Disorder, Other Than PTSD The Veteran has also been variously diagnosed with major depression, bipolar disorder, and mood disorder. As noted above, the Veteran was afforded a VA examination in April 2011 to determine if he had PTSD or any other acquired psychiatric disorders due to service. Although the April 2011 VA examiner addressed the question of whether the Veteran had PTSD due to service, he did not directly address whether the Veteran had any other psychiatric disorders due to service. Accordingly, in September 2012, the Board remanded the claim for a clarifying opinion with regard to the other prior diagnosed disorders of major depression, bipolar disorder, and mood disorder. The requested addendum opinion was obtained in November 2012; the examiner again concluded that the Veteran did not meet the DSM-IV criterion for PTSD. With respect to other psychiatric conditions (including, but not limited to depression, and/or bipolar), the examiner stated that while there was documentation of a history of these disorders, "the diagnostic algorithm required to offer a formal DSM-IV diagnosis requires that consideration of an underlying medical condition and/or effect of substances (including alcohol and/or other illicit substance) must be "ruled out" as potential and/or likely causes for such symptoms before an Axis I psychiatric diagnosis can be offered." The examiner went on to state that, in light of the Veteran's substance abuse (with documented onset prior to service), the effects of the Veteran's history of substance use cannot be "ruled out" as contributors to the Veteran's reported psychiatric symptoms, including mood instability. The examiner also noted that the Veteran had demonstrated "cluster personality traits," and that his psychological symptoms "may be associated with his personality dynamics rather than another independent Axis I DSM-IV diagnosis." The examiner opined that there was insufficient evidence at the present time to warrant a formal DSM-IV diagnosis for any other Axis I diagnosis since consideration of his substance use and characterological difficulties cannot be ruled out as potential contributors to his reported symptoms of psychiatric distress. The examiner then stated that it was "less likely than not that the Veteran currently meets DSM-IV criteria for any other Axis I diagnosis (including, but not limited to: depression, bipolar, and/or PTSD). Should the Veteran demonstrate a period of documented continuous sobriety (denied as at least 6 consecutive months of full sobriety, without any relapses), further clarity concerning the Veteran's psychiatric presentation may be obtained as such conditions would offer a better opportunity to "rule out" the impact of the Veteran's substance use on his psychiatric presentation." (Emphasis added). In response to the July 2013 supplemental statement of the case, the Veteran (through his accredited representative) submitted a statement attesting to the fact that he "has now had nine months of continuous sobriety." Therefore, he requested that a new VA psychiatric examination be conducted in light of the November 2012 VA examiner's comments (noted immediately above). As the Veteran's claim is already being remanded herein with respect to his PTSD claim, and further considering the Veteran's July 2013 statement regarding 9 months of continuous sobriety since the last VA examination, the Board finds that the Veteran should be afforded a new VA psychological examination upon remand. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA medical record not already associated with the claims file, including records from October 2012 to the present. 2. Send, along with a copy of this Remand, a description of the Veteran's account of his in-service stressor pertaining to a fellow soldier's drug overdose and resulting death at Fort Hood, and all associated documents to the JSRRC, or any other appropriate agency for verification. Again, the Veteran's alleged stressor was he was assigned to Company A, 1st Battalion, 41st Infantry, Second Armored Division, at Fort Hood, and witnessed another soldier ("Anderson" or "Andy" or "J.A.") in his unit overdose from drugs and die, in September 1973 or October 1973. If the records are unavailable and further attempts to obtain the records would be futile, the claims file should be so annotated and the Veteran notified of such. 3. After completing the above development to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder diagnosed, to include both PTSD and non- PTSD disabilities (i.e., depression, bipolar and mood disorders). If feasible, schedule the examination with the VA psychologist who conducted the initial psychiatric assessments of the Veteran in April 2011 and November 2012, at the West Haven VA Medical Center. If that psychologist is unavailable, the RO must document her unavailability, and schedule the Veteran with a similarly qualified psychiatrist/psychologist. The claims file must be reviewed in conjunction with the examination and the examiner's report should note that review. All testing deemed necessary, if any, must be conducted and results reported in detail. The VA examiner's opinion should: a) Diagnose all current psychiatric disabilities and provide a full multi- axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM-IV). b) Specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM-IV. c) If a diagnosis of PTSD is warranted, indicate the specific claimed in-service stressor or stressors upon which that diagnosis is based. d) Discuss whether it is at least as likely as not (50 percent or more probability) that any other currently diagnosed psychiatric disorder, including PTSD, depression, bipolar, and/or mood disorder, was caused or aggravated by the Veteran's reported in-service stressors or any other aspect of his military service. Please provide the reasons behind all opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. e) For purposes of the opinion being sought, the examiner should specifically consider the following: * VA medical records, private medical records, and statements of record pertaining to psychiatric problems over the years, including prior diagnoses of major depressive disorder (in a February 1999 private medical record), bipolar disorder (in an August 2007 VA medical record) and a mood disorder (in a December 2004 private medical record), * VA medical records documenting prior PTSD (some Axis I) diagnoses (in October 2003, May 2004, September 2004, December 2004, May 2005, September 2005, February 2006, and April 2006). * Service connection cannot be awarded for personality disorders or drug and alcohol abuse. Personality disorders are not diseases or injuries within the meaning of applicable legislation providing VA compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). f) A complete explanation must be given for all opinions and conclusions expressed. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 4. When the development requested has been completed, the case shall again be reviewed by the RO/AMC on the basis of the additional evidence. If any benefit sought is not granted, the Veteran shall be furnished a supplemental statement of the case, and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ DEBORAH W. SINGLETON 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).