Citation Nr: 1338012 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-44 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a compensable rating for a depressive disorder. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Non Commissioned Officers Association ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from September 1983 to September 1987 and December 1987 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision from the RO in Louisville, Kentucky. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals no additional records which are pertinent to the present appeal. The Veteran was originally service connected for his depressive disorder in a July 1998 rating decision. At the time, a noncompensable rating was assigned. The issues of tinnitus, left knee disabilities, financial competency and sleep apnea are not before the Board because the VA did not receive a Notice of Disagreement within a year of the April 2010 rating decision for any of those issues. The issue of shin splits is still current and before the RO because a year has not elapsed since the November 2013 rating decision denying service connection. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board must remand prior to any further adjudication of the Veteran's claim. Without further clarification, the Board is without medical expertise to adjudication the Veteran's claim. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the March 2010 examination, the examiner opined that the Veteran did not have PTSD and that his depressive disorder was due to his current situational stressors and not his military service. Because the VA undertook to give the Veteran an examination in March 2010, it must ensure that the examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). This examination evaluated the Veteran for mental disorders other than PTSD. In fact, the examination is titled "Mental Disorders (except PTSD and Eating Disorders)." Specifically, the examiner performed a Personality Assessment Inventory, which addressed PTSD only briefly. On remand, the VA should examine the Veteran using an examination designed specifically for PTSD, preferably in Disability Based Questionnaire format. The Veteran's last PTSD examination was in December 1997. The passage of time and the Veteran's ongoing treatment may have rendered it inadequate to properly rate the Veteran's disabilities on remand. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Furthermore, while the examiner diagnosed an adjustment disorder with depressed mood, including alcohol and opioid dependence in remission, he attributed it to the Veteran's current situational stressors. He gave no rationale for the Veteran's previous depression, difficulty in maintaining relationships and substance dependence. In a June 2010 statement, the Veteran points out that only recent events were considered in the examination and his history was not adequately weighed. On remand, the VA examiner should take this history into account when rendering an opinion on the Veteran's mental disorders. As the Veteran had extensive VA outpatient treatment in the past, on remand, any outstanding treatment records should be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(1),(2). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain and associate with the claims file all updated VA outpatient treatment records. 2. The RO should take appropriate steps to contact the Veteran in order to obtain and associate with the claims file copies of all medical records from the Veteran's incarceration. The RO must document all steps taken to obtain the records. If the records cannot be obtained, the RO must note such in the claims file. 3. The RO then should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of the claimed PTSD and the rating of the service-connected depressive disorder. The examiner should review the claims file in conjunction with the examination and should address such review in the examination report. The examiner should perform a PTSD examination in accordance with DSM-IV, preferably in Disability Based Questionnaire format. The examiner should also perform a Mental Disorders (except PTSD) examination, taking into account the Veteran's full mental health history. All indicated tests and studies should be completed. After reviewing the entire record, and examining the Veteran, the examiner should opine as to the following: Whether the Veteran is diagnosed with PTSD, and if so, whether it is at least as likely as not (50 percent probability or greater) that the PTSD is related to an injury or other event or incident of the Veteran's period of active service. The examiner should keep in mind that the VA has already conceded several in-service stressors that the Veteran experienced. If PTSD is found, full rationale should be included for which symptoms belong to PTSD and which to the Veteran's depressive disorder. If it is not possible to distinguish, explain why. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. 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). _________________________________________________ CHERYL L. MASON 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).