Citation Nr: 1337760 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-30 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and impulse control disorder. REPRESENTATION Veteran represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD Jose, Jensen N. INTRODUCTION The Veteran served on active duty from July 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board notes that the Veteran's service connection claim was initially considered in January 2009; however, the RO deferred adjudicating the issue of PTSD, pending receipt of original service personnel and treatment records or a formal finding that the records were unavailable, and receipt of more detailed information from the Veteran that allowed for corroborative research. Upon receiving the required information, the RO denied service connection for PTSD in an April 2009 rating decision. In Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim is not limited to the diagnosis identified by the Veteran. In this case, the Veteran has filed a claim for PTSD but the record suggests he has other psychiatric diagnoses. As a result, the issue on appeal has been re-characterized on the title page. After the April 2009 rating decision, private treatment records, VA treatment records, and new statements in support of his claim were associated with the claims file. Thereafter, the RO confirmed and continued the denial of service connection for PTSD in the September 2009 rating decision which reconsidered his claim in light of all of the evidence of record, as is consistent with 38 C.F.R. § 3.156(b). See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (holding, "VA must assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim."); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). In April 2010, the Veteran filed a notice of disagreement (NOD) to the September 2009 rating decision. A statement of the case (SOC) was issued by the RO in October 2011 and the Veteran perfected his appeal in November 2011 by filing a VA Form 9 (Appeal to the Board of Veterans' Appeal). After receiving new evidence from the Veteran, the RO issued a supplemental SOC (SSOC) in February 2013 and another SSOC in June 2013. REMAND Before addressing the Veteran's service connection claim for a psychiatric disorder, including PTSD and an impulse control disorder on the merits, the Board finds that additional development of the evidence is required and, therefore, the case is remanded to the agency of original jurisdiction (AOJ) for the action discussed herein. In an April 2009 VA examination, the VA examiner opined that there was not "sufficient evidence of symptoms that would indicate PTSD resulting from verified stressor." However, the examiner diagnosed the Veteran with an impulse control disorder. The examiner further opined that "[the Veteran] endorsed items on the MMPI [Minnesota Multiphasic Personality Inventory] suggesting such behavior was present prior to military [service]," and that "it is more likely than not that military experience exacerbated the impulse control." Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, when a condition is not noted at entrance into service, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The United States Court of Appeals for the Federal Circuit has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The claimant is not required in this circumstance to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service. Conversely, if a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). As noted above, the April 2009 examiner opined that there was evidence "suggesting" that a psychiatric disability pre-existed the Veteran's service and was "more likely than not" exacerbated by his service. However, because the Veteran's May 1970 entrance examination does not note any psychiatric conditions, the presumption of soundness applies to this claim. To rebut the presumption of soundness, the VA must show by clear and unmistakable evidence that the Veteran's psychiatric condition existed prior to service and was not aggravated by service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In view of the foregoing, the Board finds that clarification of the April 2009 VA examiner's opinion is necessary to determine whether there is clear and unmistakable evidence that an acquired psychiatric disorder pre-existed his military service and was not aggravated by service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). As it pertains to the claim of service connection for PTSD, the Board finds that the examination and opinion are not adequate for adjudication purposes. In this case, the RO conceded the Veteran's report of being exposed to rocket attacks and the Veteran reported during the examination that he was exposed to mortar showers. The VA examiner, however, stated that the Veteran's reported stressors were not sufficient to justify Criterion A for PTSD. The Board finds that there was an insufficient rationale provided for this conclusion. Additionally, although the examiner did not diagnosis the Veteran as having PTSD, she noted that the Veteran did not have significant PTSD symptoms, but that his military service was such that it could have produced these [insignificant PTSD] symptoms. She also stated that the Veteran's impulse control problems seem to be the primary PTSD indicator. Her statements suggest that the Veteran may in fact have PTSD. To address these matters, the Veteran should be scheduled for another VA examination, to include an opinion as to whether the Veteran has PTSD due to a verified service stressor. Because this case presents complex medical and unresolved factual questions and since the Board is precluded from reaching its own unsubstantiated medical conclusions, a medical opinion is required on the determinative issues discussed above. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination for the purpose of determining whether the Veteran has a psychiatric disorder(s) which is related to or due to the Veteran's service. The claims file and a copy of this remand must be made available to the examiner. The examiner must identify all psychiatric disorders. The examiner should specifically state whether the Veteran has a diagnosis of an adjustment disorder with mixed anxiety and depression. (See December 2011 statement from Veteran's attorney in which he states that VAMC records show such a diagnosis). After reviewing the record, the examiner should offer opinions on the following: (A) Does the Veteran have an acquired psychiatric disorder, including an impulse control disorder, which clearly and unmistakably pre-existed military service? If so, the examiner should identify such psychiatric disorder and then should provide the basis for the conclusion reached. (i) If the above is answered in the affirmative, please state whether there is clear and unmistakable evidence that the Veteran's pre-existing acquired psychiatric disorder was not aggravated during service? If there was an increase in severity of the Veteran's acquired psychiatric disorder (i.e. aggravation) during service, was that increase due to the natural progress of the disease, or was it beyond the natural progress of the disorder? (ii) If (A) is answered in the negative, state whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's acquired psychiatric disorder(s) (including any impulse control disorder, adjustment disorder with mixed anxiety and depression) is/are casually related to any incident of service, including incidents concerning the Veteran's Vietnam service. (B) The RO must specify for the examiner the stressor or stressors which it has determined that the Veteran was exposed to in service and the examiner must be instructed to consider only those stressors in determining whether the Veteran has PTSD. The examiner should discuss whether or not the verified stressor or stressors meet the DSM-IV criteria for PTSD. If PTSD is diagnosed, the examiner should identify the independently verifiable in-service stressors supporting the diagnosis. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. If a diagnosis of PTSD is appropriate, the examiner should specifically state whether there is a link established by medical evidence between current symptoms and an inservice stressor. If so, the examiner should identify such stressor. Specifically, the examiner should state whether it is at least as likely as not (i.e. at least a 50-50 probability) that the Veteran's claimed in-service stressor resulted in a current diagnosis of PTSD. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this remand is to ensure compliance with due process considerations. 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). _________________________________________________ K. OSBORNE 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).