Citation Nr: 1330648 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-30 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). The Veteran served on active duty from January 1946 to November 1947. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2012 the Board denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2013 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Partial Remand (JMPR). The Board's decision was vacated and the Veteran's claim was remanded to the Board. The Order called for the claim to be remanded as the Veteran's claim for service connection for a psychiatric disorder was inextricably intertwined with additional claims that were before the Board. In April 2013, additional VA treatment records were added to the file without a waiver of Agency of Original Jurisdiction (AOJ) review. As this matter is to be remanded in compliance with the Court's June 2013 Order, the case will be remanded to the AOJ, and the lack of waiver is of no effect in this matter. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND It is contended that the Veteran has PTSD as a result of an inservice traumatic fall. It is clear from review of the service treatment records (STRs) that this injury did occur. It is also contended that the Veteran has an acquired psychiatric disorder that is secondary to pain associated with his shoulders, hips, left knee, and lumbar spine. It is noted that claims for entitlement to service connection for disorders of the shoulders, hips, left knee, and lumbar spine are currently in remand status primarily for examinations to determine if they are of service etiology. See the Board's August 2012 decision/remand. Specifically, it is noted that VA records dated from 2007 to the present day reflect treatment for psychiatric complaints. While the Veteran has consistently related that his inservice fall resulted in psychiatric problems, an actual diagnosis of PTSD has not been recorded. Upon VA psychiatric examination in September 2011 to determine current psychiatric disorders, the examiner noted that the Veteran's inservice history included the traumatic fall. He noted, however, that this stressor did not meet the criterion to adequately support the diagnosis of PTSD. The claims folder was reviewed in making this determination. The examiner noted that there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. Moreover, there were no persistent symptoms of increased arousal. Thus, the Veteran did not meet the criteria for a diagnosis of PTSD. However, it was noted that the Veteran had an adjustment mood disorder that was, at least in part, due to chronic pain. The JMPR explained that the claim of service connection for an acquired psychiatric disorder was inextricably intertwined with the claims for service connection for disorders of the shoulders, hips, left knee, and lumbar spine, as a result of the VA examiner's opinion in September 2011. The law provides that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board finds the September 2011 examination is inadequate in that all pertinent medical findings were not of record at that time in regard to the claim for service connection for an acquired psychiatric disorder, to include PTSD. The remand development requested by the Board in a separate August 2012 decision which is currently in remand status and in the development requested below is an attempt to remedy the medical questions that remain at issue. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should ask the Veteran to identify the provider(s) of any evaluation or treatment he has received for his claimed disability (records of which are not already associated with the claims file), and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. The RO should obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason(s) therefor must be explained in the record. In addition, the RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disability since March 2013. If any records requested are unavailable, the reason must be explained for the record. 2. Then, after obtaining any available treatment records, arrange for the Veteran to undergo an appropriate VA medical examination regarding his acquired psychiatric disorder. The claims file must be reviewed by the examiner in conjunction with the examination. This, of course, would include all evidence, to include examination reports, which will be added to the record as a result of the Board's August 2012 remand. Those examination reports are important to the current claim in that the psychiatric examiner must also address whether any acquired psychiatric disorder is secondary to another disorder, to specifically include a disorder of the shoulders, hips, left knee and/or lumbar spine. Harris, supra. The examiner shall obtain from the Veteran a thorough description of his relevant history as well as his psychiatric symptoms. All tests, studies, or evaluations deemed necessary shall be performed. The examiner thereafter shall opine as to whether the Veteran has any acquired psychiatric disorders, to include PTSD, in conformity with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). For each such disorder, the examiner then shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) (1) etiologically related to the Veteran's service or (2)(i) caused by or (ii) aggravated (i.e., chronically worsened) by any service-connected disability. If the Veteran's psychiatric disabilities include PTSD, the examiner must opine as to whether the stressor of the inservice fall which is indicated in the STRs is sufficient to have caused PTSD and did cause the Veteran's PTSD. If aggravation of any acquired psychiatric disorder is found, the examiner should address the following medical issues: (a) the baseline manifestations of the Veteran's psychiatric disorder found prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the aggravating disability, to specifically include consideration of disorders of the shoulders, hips, left knee and/or lumbar spine. In providing answers to the above questions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale, to include specific comment on the pertinent medical and lay evidence (to include the Veteran's assertion of continuity of symptomatology) of record, shall be provided for each opinion rendered. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. Each of the above actions shall be documented fully in an examination report. 3. Then readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to include on a secondary basis. The adjudication must follow or be simultaneous with the adjudication of the issues remanded by the Board in August 2012. If this benefit sought is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. 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). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 20012), 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).