Citation Nr: 1332996 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 13-01 546 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 1987. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision by the RO in Winston-Salem, North Carolina that denied service connection for PTSD. Evidence of record shows that during the course of the appeal, the Veteran has been diagnosed with major depressive disorder, as well as PTSD. Hence, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). 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 evidence reflects that the Veteran served on active duty in the U.S. Navy from November 1983 to November 1987, primarily aboard the USS Dwight D. Eisenhower (CVN 69). He contends that he has current PTSD due to several stressful events in service, including one verified incident in which another sailor was blown overboard in a storm and drowned in October 1984. The Veteran has said that he witnessed this incident. Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such Veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2012). Where, as here, the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." A private psychiatrist, E.W.H., MD, examined the Veteran in April 2010, and diagnosed chronic PTSD and chronic major depression. He apparently based his diagnosis of PTSD on multiple in-service stressors as reported by the Veteran. In contrast, in early January 2011, a VA social worker did not diagnose PTSD, and instead diagnosed adjustment disorder with depressed mood. The next day, a VA psychiatrist examined the Veteran and opined that he currently met the criteria for a diagnosis of major depressive disorder, and only noted a history of PTSD. The psychiatrist also indicated that the Veteran would likely benefit from medication for both depressed mood and PTSD. On VA PTSD compensation examination in March 2011, the examiner determined that the Veteran did not have any current Axis I diagnosis, and opined that "[the Veteran] does not have PTSD. His reported symptoms are not caused by or the result of fear of hostile military, terrorist activity, and personal trauma." The Board finds that this VA examination report is inadequate, as it contains factual inaccuracies and the medical opinion does not have a supporting rationale. The Court has indicated that that it is not mere review of the claims file that is determinative of the probative value of an opinion, rather, more so the discussion of the underlying medical rationale of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, the VA examiner noted that the Veteran was on probation at work due to a verbal altercation with a coworker in January 2010, and repeatedly stated that the Veteran had held the same job for over 20 years and was still working full-time. However, VA treatment records dated in early January 2011 reflect that he had just been fired from the job he had held for 20 years. The VA compensation examiner also stated that the Veteran's mental disorder symptoms were not severe enough to interfere with his occupational and social functioning, and found no current psychiatric disorder. The VA examiner did not discuss or comment on the varying psychiatric diagnoses provided by different examiners throughout the appeal, including a diagnosis of major depressive disorder only two months prior to the VA examination, and the Board finds that another VA psychiatric examination is necessary to reconcile the different psychiatric diagnoses and to determine whether any current psychiatric disorder is related to service. The Board finds that the claim must be remanded for another VA examination and medical opinion with an adequate rationale. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination in a service-connection claim, even if not statutorily obligated to, it must provide an adequate one, or notify the claimant why one will not or cannot be provided); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). It also appears that additional relevant treatment records may be outstanding. The Veteran has made conflicting statements as to whether or not he currently receives ongoing private treatment for a psychiatric disorder. For example, a January 2011 VA treatment note reflects that he reported that he had only two sessions with a private psychiatrist, while on VA compensation examination in March 2011, he reported that he was currently being treated for psychiatric complaints of "anger and stress" by a private counselor once every month. Any additional pertinent VA or private medical treatment records must be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive, even if not actual, possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all additional records of any relevant VA or private treatment for psychiatric symptoms since service that are not already on file. If any identified records cannot be obtained, this fact must be documented in the claims file and the Veteran appropriately notified in accordance with 38 C.F.R. § 3.159(e). 2. The RO/AMC should then schedule the Veteran for a VA psychiatric examination by an appropriate examiner to determine the current nature and etiology of any psychiatric disorder found to be present. The claims file must be provided to and reviewed by the examiner. The psychiatric examination is to include a review of the Veteran's history and current complaints, as well as a comprehensive mental status evaluation and any necessary tests. The examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran currently has an acquired psychiatric disorder that is related to active military service or events therein. In providing the medical opinion above, the examiner is asked to review the medical evidence on file, and to comment on and reconcile the different psychiatric diagnoses of record. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. The Veteran is advised that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 3. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. 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. 2012). _________________________________________________ S. L. Kennedy 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).