Citation Nr: 1333890 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-04 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), a generalized anxiety disorder, depression, a depressive disorder, and a panic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned Veterans Law Judge at a May 2009 Video Conference hearing. A transcript of the hearing is of record. In October 2009, the Board remanded the case for further development. In April 2011, the Board denied the Veteran's appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2011, the Court vacated the Board's decision and remanded the case for readjudication in compliance with directives specified in an August 2011 Joint Motion filed by counsel for the Veteran and the VA Secretary. The Board remanded the case in April 2012 and December 2012 for VA examinations. This appeal was processed using the Veteran's Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the VBMS file or are irrelevant to the issue on appeal. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In the December 2012 remand, the Board noted that the May 2012 VA examiner found that the Veteran never met the DSM-IV criteria for PTSD due to lack of substantial stressors and also lack of most critical PTSD symptoms. However, the Board noted that the examiner did not consider all of the Veteran's alleged stressors. Instead, the examiner only noted the stressor of being in/or near the DMZ of Korea and hearing scary stories such as North Koreans sneaking in and killing people. The Board noted that at the Veteran's May 2009 BVA hearing, he additionally testified that he had seen dead bodies floating in the river (BVA Transcript (T.) at 5), and saw the loading of dead bodies onto his ship to go home (T. at 9). He has additionally alleged that he was stationed in a hostile military zone in Korea and that he docked in South Vietnam for approximately 2 days in hostile action, enroute to the United States from Korea. See October 2004 claim. As such, the Board directed that the Veteran be afforded another VA examination and that the examiner determine whether any of the stressors claimed by the Veteran are related to his fear of hostile military or terrorist activity, and to confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). If the examiner determined that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner was directed to list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder, to include any diagnosed during the period on appeal (a generalized anxiety disorder, depression, a depressive disorder, and a panic disorder), either began during or was otherwise caused by the Veteran's military service. The Veteran was afforded another VA examination in April 2013, and an opinion, based on that examination, was rendered in July 2013. The July 2013 VA examiner noted that the Veteran was not currently receiving any mental health treatment, and concluded that he did not endorse symptoms that would warrant a diagnosis other than alcohol abuse, and opined that his alcohol abuse was less likely than not (less than 50 percent probability) incurred in or the result of his reported military stressor or experiences. With regard to the Veteran's previously diagnosed psychiatric disorders, the examiner noted that while the Veteran may have had other Axis I disorders, to include PTSD or PTSD by history, there was no explanation as to how the treating clinicians arrived at such diagnoses, and there was not sufficient evidence to continue the diagnoses at the present time. In this regard, he noted that it appears that the Veteran's PTSD diagnosis was assigned by a nurse practitioner in August 2005, but there was no indication of how the diagnosis was reached in the treatment note, and that because the diagnosis was noted on the problem list, it was carried by other providers as by history. The Board notes that a medical opinion need not be by a physician to be competent medical evidence, and, in the absence of evidence to the contrary, the Board may presume the competence of a VA medical examiner. See Cox v. Nicholson, 20 Vet. App. 563, 568 - 570 (2007) (rejecting argument that a medical opinion by a nurse practitioner is not competent medical evidence, and, rejecting argument that VA cannot rely upon a medical opinion that does not explicitly state the qualifications of the examiner). The examiner also noted that although the Veteran had been diagnosed with and treated for depression in the past, the depression was noted to be secondary to his knee pain and arthritis. The Board finds that the July 2013 VA examiner's opinion did not adequately respond to the questions posed in the December 2012 remand. In this regard, although the examiner noted that there was no explanation in the record for how the Veteran's treating physicians had diagnosed him with PTSD; he never indicated whether, based on his own review of the Veteran's treatment history noted in the claims file, he believed the Veteran had ever met the criteria for PTSD, prior to the April 2013 VA examination, and if so, whether that diagnosis was related to any of his reported stressful events during his active military service. The Board also notes that while the July 2013 VA examiner specifically addressed the Veteran's prior diagnoses of PTSD and depression, he did not offer an opinion as to whether the Veteran's previously diagnosed generalized anxiety disorder or panic disorder were related to his active military service. Accordingly, the Board finds that the July 2013 VA examiner opinion is inadequate for evaluation purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. The Board finds that an additional VA examination is required to provide an adequate opinion as to whether any of his diagnosed psychiatric disorders are etiologically related to service. The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an additional VA psychiatric examination, to be conducted by a VA staff or contracted psychiatrist, or a VA staff or contracted psychologist, other than the July 2013 VA examiner. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) should be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file. The examiner should note 1) the Veteran's various alleged service stressors/incidents, which are found in written statements; 2) medical records; and 3) lay statements of record. The VA examiner is asked to address the following questions: a) The VA examiner should determine whether any of the stressors claimed by the Veteran are related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). b) If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder, to include any diagnosed during the period on appeal (a generalized anxiety disorder, depression, a depressive disorder, and a panic disorder), either began during or was otherwise caused by the Veteran's military service. c) If the VA examiner determines that a diagnosis of PTSD has not been demonstrated at any point in time since the Veteran filed his claim in October 2004, the VA examiner must provide a rationale for this determination. In doing so, the examiner should address the fact that various VA treatment records reference a diagnosis of PTSD. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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). _________________________________________________ F. JUDGE FLOWERS 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).