Citation Nr: 1333284 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-37 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Marine Corps from September 1978 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In October 2011, the Board re-characterized the matter on appeal as a single claim for service connection for an acquired psychiatric disorder, to include PTSD, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), and remanded the matter to the RO (via the Appeals Management Center (AMC)) for additional development. 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 Board sincerely regrets having to remand the Veteran's appeal another time. However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. In its October 2011 remand directives, the Board instructed the AMC to seek the Veteran's assistance to obtain outstanding treatment records from providers who treated him for substance abuse in 1986 and 1993 and for hepatitis C in 1994. In an October 2011 notice letter, the AMC asked the Veteran to complete and submit a separate VA Form 21-4142 for each non VA provider. The AMC then stated that if the Veteran had not received any private treatment for his PTSD, he should advise the AMC so. At no point on the notice letter did the AMC specifically state that the Veteran's assistance was needed to obtain outstanding records from providers who treated him for substance abuse in 1986 and 1993 and for hepatitis C in 1994. Moreover, given the AMC's reference to private treatment for PTSD, it is unclear whether the Veteran understood that his assistance was needed to identify and obtain private non-mental health treatment records. The Board believes that another remand is required in this case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. A remand is also needed to obtain an addendum medical statement to the report of a February 2012 VA psychiatric examination report. The Board had previously found the medical opinion in a January 2009 VA examination was inadequate and remanded for a new VA psychiatric examination. In a February 2012 VA examination report, the VA examiner found that the Veteran had an Axis I diagnosis of Anxiety Disorder and an Axis II diagnosis of Borderline Personality Disorder, Antisocial Personality Disorder. The VA examiner ruled out a diagnosis of PTSD. Based on a review of the claims folder, the February 2012 VA examiner opined that there was clear and unmistakable evidence that the Veteran's personality disorder existed prior to his enlistment based on the Veteran's own reports and his record of violations. The examiner further opined that the Veteran's personality disorder was not aggravated beyond the natural progression of the disease by his period of service because the post-service evidence suggested that the Veteran's condition was stable. The examiner further stated that there was no evidence to suggest that the Veteran's personality disorder was subject to a superimposed injury. With regard to the diagnosis of anxiety disorder, the VA examiner opined that the Veteran's anxiety disorder was less likely as not related to his period of service. In support of this medical conclusion, the VA examiner noted that the Veteran's August 1978 medical history report at enlistment documented his reports of situational anxiety and occasional insomnia prior to his experience in boot camp. The VA examiner's rational statement suggests that the Veteran's anxiety disorder pre-existed his period of service, but the examiner failed to provide an opinion on whether the Veteran's anxiety disorder was aggravated by his period of service beyond the natural progression of the disease. A remand is needed to obtain an addendum statement from the February 2012 VA examiner on whether the Veteran's anxiety disorder clearly and unmistakably existed prior to his period of service and was not aggravated beyond the natural progression of the disease by his period of service. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"); see also 38 C.F.R. § 4.2 (2012) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify the medical care providers and/or facilities that treated him for substance abuse in 1986 and 1993 and for hepatitis C in 1994. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 2. Following the receipt of any records requested above, arrange for the Veteran's claims folder to be reviewed by the VA examiner who conducted the April 2012 VA spine examination (or a suitable substitute) for addendum medical opinion on the Veteran's current diagnosed anxiety disorder. The claims folder should be made available to the examiner for review in conjunction with the medical opinion, and the examiner should acknowledge such review. If the VA examiner determines that further psychiatric and/or psychological examination is necessary in order to render the requested medical opinion, the RO should schedule the Veteran for such examination(s). The examiner should provide medical opinion to the following: (a) Is there is clear and unmistakable medical evidence (evidence that is undebatable and cannot be misunderstood or misinterpreted) that the Veteran's anxiety disorder existed prior to his period of service? (b) If the anxiety disorder clear and unmistakably existed prior to service, was there a permanent increase in the severity of the Veteran's anxiety disorder during service? (c) If there was an increase in the Veteran's anxiety disorder during his period of service, was any permanent increase in severity during service the result of service, or rather, was it the result of the natural progression of the anxiety disorder? (d) If the examiner finds that the Veteran's anxiety disorder did not exist prior to his service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or more probability) the Veteran's current anxiety disorder began during his service or is otherwise etiologically related to such service. In rendering these opinions, the examiner should take into consideration and discuss the evidence of in-service mental health treatment, including April 1979 hospitalization for suicidal ideations, as well as the Veteran's behavioral misconduct, as seen in his service personnel records and service treatment records. The examiner should also consider whether the "abuse" the Veteran has reported receiving while in service (generally during boot camp) could be the etiology of his current acquired psychiatric disorder (any such discussion should also address the Veteran's credibility of such a report). A complete rationale should be provided for all opinions rendered with a discussion of any medical principles, treatise(s) or studies used in rendering said opinion. 3. The RO/AMC should then re-adjudicate the claim under review. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL LANE 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).