Citation Nr: 1333886 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-30 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), depression, anxiety, and bipolar disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to February 1963. The Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, initially considered and denied his claim for service connection for PTSD in an April 2007 rating decision. A subsequent January 2008 rating decision of this RO confirmed and continued the denial of this claim, and he appealed to the Board of Veterans' Appeals (Board/BVA). The RO in Waco also since has denied service connection for depression, anxiety, and bipolar disorder. As support for his claim, he testified at a hearing in October 2011 at the RO in Houston before the undersigned Veterans Law Judge (VLJ) of the Board, and that is the RO that certified the appeal to the Board. That type of hearing is often and more commonly referred to as a Travel Board hearing. At the outset of the hearing, the presiding judge recognized the Veteran had received the several additional psychiatric diagnoses mentioned, so not just of PTSD, but also of depression, anxiety, and bipolar disorder, which as mentioned the RO also had considered and denied VA benefits concerning. Therefore, when subsequently remanding the claim in March 2012, the Board indicated it would be considering service connection for all diagnosed psychiatric disorders because the U.S. Court of Appeals for Veterans Claims (Court/CAVC) had held that the Board must broadly construe claims, and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). A claimant cannot be held to a hypothesized diagnosis or one he is incompetent to render when determining what his actual claim may be. Id. at 5-6. The Court also had indicated the Board should consider alternative current conditions within the scope of the filed claim. Id. In April 2013, the Board again remanded the claim for still further development. But, unfortunately, for the reasons and bases discussed below, the Board must yet again remand this claim to the RO via the Appeals Management Center (AMC). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Appellant's case should take into consideration the existence of this electronic record. REMAND Still additional development is required before deciding this claim. In the March 2012 remand, the Board noted that it was the Veteran's contention that he had suffered from psychiatric disorders since his military service, specifically on account of the inordinate amount of stress he had experienced while in boot camp. While testifying during his hearing, he expounded on this, pointing out that he had failed written tests (presumably aptitude) and "other stuff" a lot, and that he eventually was discharged from service as a consequence because of his intellectual incapacity. He said he became stressed because of the clerical work he had to perform, not because of the physical activities; he noted that he was quite good at the physical activities. In addition, he alleged that he had PTSD from being physically assaulted by his company commander, claiming that commanding officer "knocked him out" for folding socks incorrectly. Thus, given these contentions, the Board remanded the claim and directed the RO/AMC to afford the Veteran a VA compensation examination: (1) determining whether he had PTSD and, if so, whether it was the result of a stressor during his military service, including when considering the special provisions of 38 C.F.R. § 3.304(f)(5) regarding personal assault, and (2) determine whether any of the other psychiatric disorders that had been diagnosed (namely anxiety, depression, and bipolar disorder) were related or attributable to his military service, either to the type of stress he alleged to have experienced in service or the claimed personal assault. Pursuant to that March 2012 remand, the Veteran underwent a VA examination in August 2012 that was conducted by A.E.W., M.D., a VA psychiatrist. Following the mental status evaluation, Dr. W. diagnosed PTSD, so she confirmed the Veteran has it. But she specifically linked the PTSD to the Veteran's childhood trauma, including physical and sexual abuse, rather than to his military service. Thus, she addressed the pertinent question of whether he had PTSD and, if so, whether it was related to his service, concluding he did but that it was not. However, she did not also address the other pertinent question of whether any of his other psychiatric disorders that had been diagnosed (namely anxiety, depression, and bipolar disorder) were related or attributable to his service, either to the type of stress he alleged to have experienced in service or the claimed personal assault. Because of this, there was not compliance with the March 2012 remand directives. The Board is obligated by law to ensure compliance with its directives, as well as those of the Court. The Court has explained that this compliance is neither optional nor discretionary. The Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). That said, there was however compliance with the more recent April 2013 remand directive, which instead was to obtain relevant Social Security Administration (SSA) records - which the AMC received in June 2013. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Return the claims file to Dr. A.E.W., the VA compensation examiner who evaluated the Veteran's mental health in August 2012, for an addendum opinion. Dr. W. should review the claims file, particularly the August 2012 VA examination report. Following this review, she should additionally respond to the following: With respect to the Veteran's psychiatric disorders other than PTSD, are any of those disorders, including especially his anxiety, depression, and bipolar disorder, related or attributable to his military service, either to the type of stress he alleges to have experienced in service or the claimed personal assault. *The only medical nexus opinion offered thus far was concerning the PTSD, not also these other disorders, hence, the reason this additional (supplemental) comment is needed. If, for whatever reason, it is not possible to have this same VA examiner provide this further comment (supplemental/addendum opinion), then have someone else do it who has the necessary qualifications and expertise. In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion. 2. Review the addendum opinion to ensure it includes all requested information and, if not, return it to the examiner for correction. 38 C.F.R. § 4.2. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).