Citation Nr: 1330249 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 08-22 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to January 1971. This appeal is before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2010, the Veteran and his spouse testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. When this case was before the Board in July 2010, it was decided in part and remanded in part. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA. REMAND The Veteran primarily claims that he is entitled to service connection for PTSD because it due to his exposure to combat stressors in connection his duties as a helicopter pilot in Vietnam. Initially, the Board notes the Veteran submitted an independent medical opinion from a registered nurse after his claim was last adjudicated by the originating agency. He has not waived his right to have the new evidence considered by the originating agency. For reasons detailed below, the claim must also be remanded for a new VA examination. The Veteran's service treatment records do not confirm any in-service psychiatric treatment, but his military records do confirm his service in Vietnam as a helicopter pilot. Post-service records indicate a lengthy history of treatment for variously diagnosed psychiatric disorders, to include PTSD, depression, and adjustment disorder. These records initially document treatment in 1989, nearly two decades after service. Complicating the matter, the Veteran suffered a stroke in 2006. Thereafter, medical records indicate further cognitive and psychiatric impairment. The Veteran was afforded VA examinations in April 2007 and October 2009 where the examiners found the Veteran did not meet the diagnostic criteria for PTSD. Neither examiner addressed whether any other psychiatric diagnosis rendered is related to the Veteran's military service. The Board remanded this claim in July 2010 for a VA examination other development. The Veteran was afforded a VA examination in December 2010 where the examiner again opined that the Veteran did not meet the criteria for PTSD. The examiner also diagnosed the Veteran with a mood disorder, but found the disorder was most likely attributable to his general medical condition, significantly his stroke, and not due to his military service. The Veteran submitted additional records indicating ongoing therapy and counseling for his PTSD. These lengthy records from the Veteran's therapist indicate treatment for PTSD symptoms, depression, and anxiety related to combat. In April 2011, an addendum opinion was received from the December 2010 VA examiner. At that time, the examiner reiterated the same opinion finding that the Veteran's psychiatric symptomatology all began after the 2006 stroke and, therefore, was most likely related to the stroke. In response, the Veteran submitted an independent medical opinion from a registered nurse (RN) pointing out that the Veteran did in fact receive psychiatric treatment, and treatment specifically for PTSD, prior to his 2006 stroke. The RN attached treatment records from 1989 to 1995 indicating diagnosis and treatment for PTSD and other psychiatric disorders. Although the record previously contained treatment records from 1989 to 1995 indicative of the psychiatric treatment referenced by the RN, the December 2010 VA examiner did not address or reconcile these records within the opinion or April 2011 addendum. In light of the RN's 2011 opinion, the conflicting medical evidence, and the inadequacies of the last VA examination, a new VA examination is required. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain all available, outstanding records pertinent to the Veteran's claim, to include any more recent VA outpatient records. All efforts to obtain these records must be fully documented if any requested records are not obtained. 2. Then, afford the Veteran a VA examination by a psychiatrist or psychologist, other than the December 2010 examiner. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. With respect to each acquired psychiatric disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service, to include stressors associated with his duties as helicopter pilot. A diagnosis of PTSD should be confirmed or ruled out. If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis, to include the stressor(s) resulting in the disorder. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for the diagnosis. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The rationale for all opinions expressed must be provided and the examiner is specifically asked to reconcile the conflicting medical evidence, specifically the past VA examination findings of no PTSD or any other psychiatric diagnosis related to service, the private RN opinion dated in November 2011, and treatment records from 1989 to 2011 noting various psychiatric diagnoses. If any required opinion cannot be provided, the examiner should explain why. In particular, if an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and an appropriate period of time for response before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the 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). _________________________________________________ Shane A. Durkin 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).