Citation Nr: 1337055 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 13-21 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran initially filed a claim of entitlement to service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims clarified how the Board should analyze claims for PTSD and other acquired psychiatric disabilities. As emphasized in Clemons, though a veteran may only seek service connection for PTSD, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Upon review of the evidence, which shows diagnoses of PTSD and depressive disorder, not otherwise specified, the Board has re-characterized the issue as shown on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The June 2011 rating decision indicates the RO reviewed outpatient medical evidence from the Orlando VA Medical Center Healthcare System dated from September 28, 2009 to June 9, 2011, and outpatient medical evidence from the Tampa VA Medical Center Healthcare System dated from December 8, 2004, to September 23, 2009. However, the only treatment records available for review in the Veteran's Virtual VA file and claims file include an October 2009 VA treatment record from the Kissimmee Outpatient Clinic and an August 2011 Agent Orange Program Note from the Orlando VA Medical Center. The Veteran's claims file or Virtual VA file must contain all evidence reviewed by the RO in conjunction with the Veteran's claim. The Board is prohibited from obtaining these records directly. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37(b), 20.1304(a) (2012). As such, the issue on appeal is remanded to the RO in order to associate all records reviewed in conjunction with the Veteran's claim. The Board also finds the Veteran should be afforded an additional VA examination to determine whether an acquired psychiatric disability, to include PTSD and depressive disorder, not otherwise specified, is related to active duty. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). In support of his claim, the Veteran submitted an August 2010 psychological evaluation report from Dr. W.J.A. The record indicates Dr. W.J.A. performed a clinical interview, conducted a Minnesota Multiphasic Personality Inventory, and reviewed the Veteran's DD-214 Forms. Dr. W.J.A. diagnosed PTSD and depressive disorder, not otherwise specified, and opined that the Veteran's symptoms were as likely as not service-connected. The Veteran underwent VA examination in June 2011 in conjunction with his claim. The VA examiner opined that it was less likely as not that the Veteran had a mental condition caused by or a result of his military service. Although the VA examiner found the Veteran's reported stressors met the criterion to support a diagnosis of PTSD under the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV), the VA examiner determined that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD. In fact, the VA examiner found the Veteran did not currently have any diagnosable mental condition. The VA examiner also commented that: His private evaluation [by Dr. W.J.A.] is somewhat of an aberration when compared to the clinical history from 2004 to 2011. Numerous mental health screens specifically for conditions of PTSD, Depression, Alcohol usage, SI's, HI's, abuse and neglect have been negative from 2004 to 2011. Two meetings with his PCP after his private evaluation are negative for any mental conditions reported. It could be as the Veteran reported that he was having a lot of road rage when he went in for his private evaluation in August 2010 and he has gotten much better today. His private evaluation could have been impacted by road rage and/or secondary gain factors." In his June 2013 substantive appeal, the Veteran argued that the June 2011 VA examination was inadequate because it lasted only 30 minutes and because the VA examiner did not perform any diagnostic tests. In addition, the Veteran contended that the VA examiner had preconceived notions as to whether or not he had PTSD. Conversely, the Veteran asserted that Dr. Anderson's positive opinion deserved greater probative value because it was in compliance with the DSM-IV and was rendered after a lengthy interview. First, in regard to the Veteran's assertions with regard to the adequacy of the June 2011 VA examination, the Board has no reason to doubt the June 2011 VA examiner's competency. The Veteran has not explained why he believes the examiner has the bias alleged. Moreover, the examiner may have deemed that specific psychological testing was not necessary in view of his examination in conjunction with a review of the record. However, the examiner does support his conclusion with a rationale that relies on medical records from 2004 through 2011 to explain why Dr. W.J.A.'s examination conclusions are inconsistent with the weight of the evidence. As was outlined at the beginning of this remand, as most of the records for this time period have not been associated with the claims file, the Board cannot made an educated decision as to the adequacy of the June 2011 VA opinion. On the other hand, the Board finds Dr. W.J.A.'s opinion inadequate to support a claim of entitlement to service connection because Dr. W.J.A. did not provide any rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning). Rather, Dr. Anderson merely stated that the Veteran's symptoms "were as likely as not service-connected." In view of the conflicting medical opinions, and that more than 2 years have passed since the last comprehensive psychological examination, the Board finds that obtaining another VA examination may be of assistance in order for VA to fully and fairly adjudicate this claim. As such, the RO should schedule the Veteran for an additional VA mental disorders examination by a psychologist or psychiatrist other than the June 2011 VA examiner. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should associate with the record all the records reviewed in conjunction with the adjudication of the Veteran's claim, to include outpatient medical records from the Orlando VA Medical Center Healthcare System dated from September 28, 2009 to June 9, 2011 and from the Tampa VA Medical Center Healthcare System dated from December 8, 2004 to September 23, 2009. If they cannot be located, that fact should be noted in the record. 2. Then, schedule the Veteran for a VA examination to ascertain the nature and etiology of any present acquired psychiatric disability, to include PTSD and depressive disorder, not otherwise specified. The examination should be performed by an examiner other than the author of the June 2011 VA examination report. The claims file and a copy of this remand should be provided to the examiner, and any necessary diagnostic testing deemed necessary should be performed. After a review of all the evidence, the examiner should provide a detailed explanation as to whether or not the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. In this respect, the examiner must specifically comment on Dr. Anderson's August 2010 psychological evaluation findings and the June 2011 VA examination report. If PTSD is diagnosed, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and whether it is at least as likely as not (50 percent probability or more) that the Veteran's PTSD is related to the claimed stressors. In addition, the examiner is requested to specifically state whether or not the underlying stressor is related to the Veteran's fear of hostile military or terrorist activity. If PTSD is not diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed acquired psychiatric disability other than PTSD had its onset during active duty or is otherwise causally or etiologically related to active duty. The examiner should specifically comment on the diagnosis of depressive disorder, not otherwise specified, as shown on the August 2010 private report. In providing the opinion, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A complete rationale for all opinions and conclusion shall be provided, with citation to medical treatise, studies, etc., if appropriate. If you cannot provide an opinion without resorting to mere speculation, please provide a complete explanation stating why this is so. In so doing, you must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions. 3. When the above development has been completed, re-adjudicate the issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD and depressive disorder, not otherwise specified. If any benefit sought on appeal remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and an appropriate period of time in which to respond. Then, return the appeal to the Board. The Veteran 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). _________________________________________________ JONATHAN B. KRAMER 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).