Citation Nr: 1331261 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-24 082A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a psychiatric disorder, variously diagnosed. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction of the case was subsequently transferred to the RO in Milwaukee, Wisconsin. In May 2011, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing has been added to the Veteran's claims file. In July 2011, the Board remanded this matter for additional evidentiary development. The issue on appeal has been recharacterized to properly reflect the various psychiatric disorders diagnosed during the course of this appeal. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled); McClain v. Nicholson, 21 Vet. App. 319 (2007)(holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication). 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 The Veteran is seeking entitlement to service connection for a psychiatric disorder. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Currently, the earliest post service psychiatric treatment record associated with the claims file is dated in August 1996. The record indicates, however, that earlier treatment records are available. Specifically, a VA examination of the nose and sinus, conducted in July 1996, referenced that the Veteran had been prescribed Artane for depression. Moreover, a September 1996 VA treatment report noted that he was being treatment by a private psychiatrist, Dr. Harrington, in San Diego, California, and that he had previously been hospitalized multiple times. Under these circumstances, the RO must attempt, with the assistance of the Veteran, to obtain all available treatment records relating to the Veteran's post service psychiatric treatment. Since the Veteran filed his present claim in September 2004, he has been diagnosed with multiple psychiatric disorders: PTSD, bipolar disorder I, anxiety disorder, depression, bipolar affective disorder, substance induced mood disorder, alcohol dependence, polysubstance dependence, and methamphetamine abuse. In July 2011, the Board remanded this matter directing that the Veteran be scheduled for a psychiatric examination to determine the existence and etiology of any psychiatric disorder found. In McClain v. Nicholson, 21 Vet. App. 319 (2007), the United States Court of Veterans Appeals held that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication. Thus, the requested medical opinion must address each of the psychiatric disorders diagnosed during the course of this appeal, or explain why any such diagnosis was not appropriate. A review of the August 2011 VA examination for psychiatric disorders reveals it to be inadequate as it failed to address all of the various psychiatric disorders diagnosed during the course of this appeal. Moreover, the VA examiner's opinion as to the relationship between the psychiatric disorders which were considered and the Veteran's military service is unclear. While it appears the VA examiner concluded that a medical opinion could not be provided without resorting to speculation, a clear statement to that effect was not provided. Finally, the VA examiner noted that the Veteran's inconsistent statements concerning his reported inservice stressors and his psychiatric treatment history "over the years make accurate diagnosis a quandary." In fact, it appears the Veteran has recanted his inservice stressors supporting his claim for PTSD. Under these circumstances, the Veteran should be provided with a final opportunity to identify and fully describe his inservice stressor(s). Thereafter, the RO should attempt to verify the Veteran's alleged inservice stressor(s); and then, the RO should schedule the Veteran for the appropriate psychiatric examination to determine if any of the Veteran's diagnosed psychiatric disorders are related to his military service. See Barr, 21 Vet. App. at 311 (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional evidence, to include VA and non-VA medical providers who have treated him for a psychiatric disorder since his discharge from the service. The Veteran should specifically be asked to complete the appropriate authorization and consent forms to obtain all pertinent psychiatric treatment reports from private psychiatrist, Dr. Harrington, in San Diego, California; and his psychiatric hospitalizations including those prior to 1996. Regardless of the Veteran's response, the RO must obtain updated treatment records relating to the Veteran, since January 2010, from the North Chicago VA medical center. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran should be asked to identify and fully describe all inservice stressors he experienced. Thereafter, the RO should attempt to verify any stressor identified (if possible). 3. Thereafter, the Veteran must be afforded the appropriate VA examinations to determine whether any psychiatric disorder diagnosed during the course of this appeal (since September 2004) is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all pertinent records on Virtual VA must be made available to the examiner. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any psychiatric disorder diagnosed during the course of this appeal, to include PTSD, bipolar disorder I, anxiety disorder, depression, bipolar affective disorder, substance induced mood disorder, alcohol dependence, polysubstance dependence, and/or methamphetamine abuse is related to the Veteran's active duty service. If the Veteran meets the criteria for a diagnosis of PTSD, the examiner must specify the stressor or stressors that serve as the underlying basis for this diagnosis, and also provide as much detail as possible concerning each alleged stressor relied on in rendering the diagnosis. The examiner must also specify whether each stressor established by the record was sufficient to produce PTSD; and whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiner. The examiner must also provide an opinion as to whether any of the Veteran's other psychiatric disorders, bipolar disorder I, anxiety disorder, depression, bipolar affective disorder, substance induced mood disorder, alcohol dependence, polysubstance dependence, and methamphetamine abuse found or previously diagnosed, began in service or otherwise is related to his military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim remaining on appeal must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ____________________________________________ G. A. WASIK 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) (2013).