Citation Nr: 1332387 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-37 220A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, anxiety disorder, depression, and major depressive disorder (MDD). REPRESENTATION Veteran represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Service connection for PTSD was denied therein. The Veteran appealed this determination. The RO denied service connection for anxiety disorder and depression in a February 2011 rating decision. In April 2011, the Board recharacterized the Veteran's appeal to encompass any psychiatric disorder claimed by the Veteran, including the aforementioned, or medically diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection then was denied by the Board. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Memorandum Decision setting aside the Board's decision in January 2013. Service connection accordingly was remanded back to the Board for readjudication. Additional pertinent evidence containing new diagnoses of anxiety and MDD thereafter was submitted along with a waiver of the right to have it considered initially by the RO as the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c) (2013). It thus may be considered in the first instance by the Board. Based on review of all of the evidence in the Veteran's paper claims file in addition to his Virtual VA electronic claims file, however, additional development is required prior to readjudication. This appellate matter thus is REMANDED to the RO. REMAND In its Memorandum Decision, the Court found that the Board did not provide adequate reasons and bases for its denial of service connection for a psychiatric disorder. The Board's determination that a diagnosis of PTSD had not been established specifically was found to be problematic. The pertinent evidence, which included a February 2010 opinion from private licensed psychologist M.A., a May 2010 VA examination complete with an opinion by a psychologist, and an October 2010 opinion from M.A., was summarized. It was noted that the Board found the VA opinion not diagnosing PTSD more probative that M.A.'s opinions which diagnosed PTSD for various reasons. Each of these reasons then was rejected. Next, the adequacy of the VA opinion particularly with respect to criteria B and C of a PTSD diagnosis made pursuant to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) was questioned. The Court concluded by noting that it did not hold that the Board's ultimate conclusion was incorrect, only that greater explanation is required in the aforementioned regards. Compliance with the Court's Memorandum Decision is required. Forcier v. Nicholson, 19 Vet. App. 414 (2006). However, the greater explanation directed by the Court cannot be undertaken by the Board at this time. The Board sincerely regrets the delay of a remand, but additional development is needed. Such development is necessary to ensure that the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in substantiating the benefit sought. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). If VA undertakes the effort to provide an examination and/or opinion with respect to a service connection claim, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An examination or opinion is adequate when it allows the Board to perform a fully informed evaluation of the claim. Id. The disability present, if any, must be described in sufficient detail during the examination. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). Consideration must be given to the Veteran's entire medical history. Id. This helps ensure that the factual premises underlying the opinion are accurate, as is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The opinion's rationale must be clearly and fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. A VA examination and opinion has been provided here. The examination was adequate, but the opinion is not adequate. There is no indication of an inaccurate factual premise, but the Court found that the rationale provided to support that the Veteran did not meet criteria B and C of a DSM-IV PTSD diagnosis was unclear. Clarification from a qualified medical professional is needed because the Board is prohibited from rendering its own opinion on such a medical question. Stefl, 21 Vet. App. at 120; Colvin v. Derwinski, 1 Vet. App. 171 (1991), overturned on other grounds, Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Additionally, it is notable that the VA opinion was rendered before M.A.'s October 2010 opinion. It also was rendered prior to submission of the additional pertinent evidence diagnosing anxiety and MDD. This evidence also consists of an August 2013 opinion diagnosing PTSD from private clinical psychologist F.B. In other words, the Veteran's entire medical history was not considered. This remains true today. Neither M.A.'s October 2010 opinion nor F.B.'s opinion considered the VA opinion. Another VA opinion therefore is needed. To facilitate the formulation of it, another VA examination shall be conducted beforehand. Of note is that the criteria for a diagnosis of PTSD under the DSM-IV specifically must be considered. 38 C.F.R. § 4.130 (2013). The criteria for this diagnosis under the new DSM-V also must be considered. It is expected that a proposal to require use of the current DSM as opposed to the DSM-IV will be forthcoming. The Veterans Benefits Administration and Veterans Health Administration also expected, at least as of June, to transition from using the DSM-IV to using the DSM-V as of October 1, 2013. To ensure the new VA opinion takes into consideration the Veteran's entire medical history, outstanding records must be reviewed in addition to all of the previous opinions. Reasonable efforts must be made by VA to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2013). Reasonable efforts with respect to records in government custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). The claimant shall be notified if requested records cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). VA has obtained the Veteran's VA treatment records dated into November 2010. They reveal ongoing psychiatric treatment. It thus is inferred that there may be pertinent VA treatment records dated from November 2010 to present. Indeed, the Veteran has reported VA psychiatric treatment since the summer of 2011. There is no indication that updated VA treatment records have been requested by VA. A request or requests for them must be made, especially since VA has constructive notice of VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative, if any, must be notified if the request or requests are unsuccessful. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain the Veteran's VA treatment records dated from November 2010 to present. Associate all records received with the paper or Virtual VA electronic claims file. If the records ultimately are not received or are received but are incomplete, notify the Veteran and his representative. Document the paper or Virtual VA electronic claims file as appropriate in this regard. 2. After completion of the above, arrange for the Veteran to undergo an appropriate VA examination regarding a psychiatric disorder. The examiner shall not be the same examiner involved in this matter in May 2010. The examiner shall review the paper claims file and Virtual VA electronic claims file, documenting such in a report. The examiner also shall document in the report an interview of the Veteran regarding the onset, frequency, duration, and severity of his relevant symptoms as well as their impact on his activities of daily living and employment. All tests and studies deemed necessary next shall be performed, the results of which shall be included in the report. The examiner then shall render an opinion in the report as to whether or not the Veteran meets the criteria for PTSD or any other diagnosis under the DSM-IV and under the DSM-V. Particular attention shall be given to PTSD diagnostic criteria B and C. For each diagnosis made, whether PTSD or otherwise, the examiner additionally shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that it is related to the Veteran's service. Of note, his claimed in-service stressors of being under enemy attack and seeing body bags while stationed in Vietnam have been confirmed. A clear and complete rationale (explanation) shall be provided in the report for each opinion concerning diagnosis and a service relationship. This shall include a thorough discussion of pertinent medical principles, with a citation for and copy if possible of any literature referenced, as it concerns the pertinent medical and lay (non-medical) evidence. The medical evidence includes M.A.'s February and October 2010 opinions, the May 2010 VA examiner's opinion, F.B.'s August 2013 opinion, and VA and private treatment records. The lay evidence includes statements from the Veteran and, if submitted, statements from his family, friends, and fellow soldiers. If an opinion cannot be provided without resort to speculation, the rationale shall include a discussion of whether this is because more information is needed, information that cannot be obtained is needed, the limits of current medical knowledge have been exhausted, there are multiple possible etiologies with none more likely than not the cause, or some other reason. 3. Finally, readjudicate the Veteran's entitlement to service connection for a psychiatric disorder. If this benefit is granted, furnish him and his representative with a rating decision. If it is not granted, furnish them with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. Place a copy of the SSOC in the paper or Virtual VA electronic claims file. No action is required of the Veteran until he is notified by the RO. However, he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2013). He also is advised that he has the right to submit additional evidence and argument. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appellate matter must be afforded prompt treatment. The law indeed requires that all matters remanded by the Board or by the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2013).