Citation Nr: 1334374 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-12 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for alcoholism, as secondary to a psychiatric disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from May 1975 to March 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision by the Department of Veterans Affairs (VA) Milwaukee, Wisconsin, Regional Office (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he is entitled to service connection for a psychiatric disability, as well as for alcoholism as secondary to a psychiatric disability. Specifically, the Veteran contends that during active service he was deployed to various isolated destinations, which caused him to become depressed, thereby resulting in his excessive drinking. At his RO hearing, the Veteran reported serving at Guantanamo Bay, on an island in the Indian Ocean, and in Guam. The Veteran further reported that when he returned to the U.S., he asked his officer if he could see someone for his drinking, smoking, and depression, but he never received a response and he did not follow up with the officer or anyone else. Thus, the Veteran has essentially confirmed that there will be no evidence of in-service treatment for a psychiatric disability or alcoholism. The Veteran, at the time of his hearing, confirmed that the first time he was seen by anyone regarding his mental health was after a car accident in 1995. As noted in the Board's prior remand, the record contains varying potential diagnoses related to the Veteran's psychiatric symptoms, including social phobia and a mood disorder. The record also contains lay evidence related to in-service symptoms and symptoms experienced since active service. Thus, in July 2012, the Board remanded this matter such that the Veteran could undergo a VA examination and to obtain an opinion as to the cause of any currently diagnosed psychiatric disorder. In particular, the examiner was to fully describe all manifestations of any current psychiatric disability. The examiner was also instructed to review the evidence of record, with consideration of the Veteran's lay statements, and opine as to whether any current acquired psychiatric disorder is etiologically related to the Veteran's active duty service, to include the Veteran's reported isolated duty assignments, if verified, during service. The examiner was specifically instructed to address the Veteran's diagnoses of social phobia and "rule out" mood disorder, as well as the lay evidence related to symptoms experienced since service, as well as the 1995 car accident. In August 2012, a VA examiner noted the Veteran's current diagnosis as anxiety disorder, not otherwise specified, with significant depressive symptoms. The examiner reported the Veteran's history, as reported by the Veteran, as including an onset of symptoms "during or just after his military service." The examiner also reported that there is no evidence of treatment until following the Veteran's 1995 vehicular homicide arrest. The Veteran described service at Guantanamo Bay, Cuba; Diego Garcia, in the Indian Ocean; and Gulfport, Mississippi. The examiner, however, did not address the Veteran's service personnel records, which shows service in Cuba and Mississippi, but not at Diego Garcia. Following the Veteran's reported history and the assessment of the current disability, the VA examiner ended the examination report. There is no opinion as to causation found within the VA examiner's August 2012 analysis. A January 2013 addendum report merely confirms that the VA examiner reviewed the claims file. To the extent that the VA examiner's report is absent an opinion as to the cause of the current psychiatric disorder, it is inadequate. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Further, because of this discrepancy, the opinion is not in compliance with the Board's prior remand directives. Another remand for an addendum opinion is necessary. Stegall v West, 11 Vet App 268 (1998). On remand, the RO should again give the Veteran the opportunity to provide information related to any ongoing treatment of his psychiatric disorder. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include any VA or non-VA evidence. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the claims file must be returned to the examiner who performed the August 2012 VA mental disorders examination and provided the January 2013 addendum, if available. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Following a review of the evidence of record, and with consideration of the Veteran's statements, to include the Veteran's reports of symptoms during service and since, the examiner must provide an addendum to opine as to whether any current acquired psychiatric disorder is etiologically related to the Veteran's active duty service, to include the Veteran's verified duty assignments during service. In rendering this opinion, the examiner must specifically address the Veteran's current diagnosis, the lay evidence of ongoing symptomatology during and since service, as well as the 1995 motor vehicle accident. If the examiner determines that a psychiatric disability is related to military service, the examiner must also provide an opinion as to whether the Veteran's alcohol dependence, in remission, was caused or aggravated by (permanently worsened beyond normal progression of the disorder) the psychiatric disability. If the examiner finds that the alcohol dependence is aggravated by the psychiatric disability, the examiner must quantify the degree of aggravation, if possible. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. If the examiner that conducted the August 2012 VA mental disorders examination and provided the January 2013 addendum is unavailable, is unable to provide the requested opinions, or indicates that another VA examination is necessary, the RO must make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA examination to determine the etiology of his psychiatric disorder. In providing the etiological opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated testing must be conducted. Following a review of the evidence of record, an examination of the Veteran, and with consideration of the Veteran's statements, to include the Veteran's reports of symptoms during service and since, the examiner must provide an opinion which addresses whether any current acquired psychiatric disorder is related to the Veteran's active duty service, to include the Veteran's verified duty assignments during service. In rendering this opinion, the examiner must specifically address the Veteran's current diagnosis, the lay evidence of ongoing symptomatology during and since service, as well as the 1995 motor vehicle accident. If the examiner determines that a psychiatric disability is related to military service, the examiner must also provide an opinion as to whether the Veteran's alcohol dependence, in remission, was caused or aggravated by (permanently worsened beyond normal progression of the disorder) the psychiatric disability. If the examiner finds that the alcohol dependence is aggravated by the psychiatric disability, the examiner must quantify the degree of aggravation, if possible. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. If another examination is required, the RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the requested examination or addendum has been completed, the RO must review the examination report or addendum to ensure that it is in complete compliance with the directives of this remand and the Board's prior remand. An examination report or addendum must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2013).