Citation Nr: 1341408 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-15 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, major depression, and a personality disorder. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to July 1970. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which readjudicated a November 2008 claim for service connection for PTSD pursuant to receipt of new and material evidence following a May 2009 rating decision prior denial of the claim. See 38 C.F.R. § 3.156(b). A January 2011 supplemental statement of the case (SSOC) addressed the claim as entitlement to service connection for an acquired psychiatric disability, to include but not limited to PTSD, anxiety, major depression, and a personality disorder. See Clemons v. Shinseki, 23 Vet App 1 (2009). The Board observes that in May 2011 correspondence, the Veteran withdrew his claim for service connection for anxiety, depression, major depressive disorder, and a personality disorder. He said that he was continuing his appeal for service connection for PTSD. During an October 2011 hearing before the undersigned Veterans Law Judge, the Veteran acknowledged his May 2011 correspondence but stated that he wished to reinstate the appeal for service connection for anxiety, depression, major depressive disorder, and a personality disorder. As a result, the Board has characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, major depression, and a personality disorder. 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 Board notes that an October 2006 rating decision denied service connection for depression, NOS, to include as secondary to service-connected prostate cancer. A September 2007 rating decision reopened the claim for service connection for depression, NOS, as secondary to service-connected prostate cancer, and denied it on the merits. The Veteran did not complete an appeal of either rating decision. In this regard, the Board finds that a statement of the Veteran, contained in a June 2011 correspondence, may reasonably be construed as a claim to reopen a claim for service connection for depression, to include as secodary to service-connected prostate cancer. As noted in the February 2012 remand, the Board will consider the June 2011 correspondence from the Veteran as an application to reopen the claim for service connection for depression, to include as secondary to service-connected prostate cancer. Thus, the issue of whether new and material evidence has been received to reopen a claim for service connection for depression, to include as secondary to service-connected prostate cancer, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Significantly, the Board finds that this issue is inextricably intertwined with the issue developed for appellate consideration of entitlement to service connection for an acquired psychiatric disability, however diagnosed. As such, the issue of whether new and material evidence has been received to reopen a claim for service connection for depression, to include as secondary to service-connected disability, is remanded to the AOJ for adjudication, prior to appellate consideration of the issue on appeal. In the February 2012 remand, the Board found that the September 2010 VA examination was inadequate because it deferred Axis I diagnoses other than polysubstance dependence, in full sustained remission; defer diagnosis in other areas. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (2011) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Therefore, the appeal was remanded so that another VA psychiatric examination could be performed. Another VA examination was completed in March 2012; however, unfortunately, the Board again finds the opinion to be inadequate. Id. Specifically, the March 2012 VA examiner stated that he could not opine as to an Axis I diagnosis without resorting to speculation. The basis for this opinion was that the examiner found the Veteran's reports of symptoms to be not credible, citing both his statements at the examination and throughout the claims file. However, the Board observes that the examiner focused on the diagnosis of PTSD, discussing in detail only whether the Veteran's symptoms met the criteria for PTSD. The treatment records are replete with diagnostic notations such as "R/O malingering for benefits" and "PTSD presentation is atypical," as well as notations that the Veteran's approach to psychological testing invalidated the instrument and suggested an attempt to exaggerate symptoms. Private treatment providers noted that the Veteran had sought treatment outside VA in part because VA providers would not assign a diagnosis of PTSD to his symptoms, and in a March 2010 VA treatment note, it was indicated that the Veteran expressed dissatisfaction with his VA treatment because providers focused on treating his depression and were unwilling to treat him for PTSD. However, while it is evident that the Veteran has become focused on being diagnosed with PTSD and this desire may be complicating his diagnostic picture, his interest in this diagnosis only began at the time of his claim in November 2008. He was receiving mental health treatment prior to that date, and those treatment notes do not express any concerns that the Veteran was not credible or was attempting to exaggerate his symptoms to obtain benefits. Further, even though the Veteran does not have a diagnosis of PTSD, he has been treated for psychiatric symptoms during the appeal period. For example, a May 2011 VA treatment note states that the Veteran was diagnosed with probable malingering of PTSD symptoms; he was diagnosed with chronic adjustment disorder with depressed mood vs. dysthymic disorder, and the note does not indicate that those diagnoses and symptoms were suspect. Private treatment records reflect diagnoses of major depressive disorder and anxiety disorder, R/O PTSD. Moreover, the Veteran has offered testimony and reported in treatment notes that he has had psychiatric symptoms since service, and the Veteran is competent to speak to such symptoms. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In light of these facts, the Board determines that another opinion as to the nature and etiology of the Veteran's acquired psychiatric disorder(s) should be obtained. The Board also notes that the Veteran continues to receive VA treatment at the Minneapolis VA Medical Center (VAMC). The most recent VA treatment note is dated in February 2012; therefore, all subsequent treatment notes from the Minneapolis VAMC should be added to the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression, to include as secondary to service-connected disability. Notice of the determination, and the Veteran's appellate rights, should be issued to the Veteran and his representative. In the event of receipt of a timely notice of disagreement, the issue should be forwarded to the Board for appellate consideration ONLY if a timely substantive appeal is received following issuance of a statement of the case. 2. Associate with the claims file all treatment reports from the Minneapolis VAMC and any associated outpatient clinics dated from February 2012 to the present. All requests and responses, positive and negative, must be documented in the claims file. 3. Request an addendum to the March 2012 VA opinion from that examiner or from another equally qualified examiner if the March 2012 examiner is not available. The claims file must be made available to the examiner, and the examination report should reflect that review of the file occurred. Following a review of the record, the examiner should identify all diagnoses of acquired psychiatric disabilities of record. If the examiner finds that any of the identified diagnoses is not appropriate to the Veteran's symptoms, the examiner should so state and provide an explanation for that conclusion, to include a discussion of the Veteran's credibility in describing his symptoms if applicable. The examiner should opine as to whether it is at least as likely as not (50 percent or more likelihood) that any acquired psychiatric disability, however diagnosed, is a result of the Veteran's military service. A complete rationale for any opinion expressed should be provided. If it is determined that the addendum cannot be provided without a clinical examination of the Veteran, another VA examination should be scheduled. 4. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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. 2013). _________________________________________________ U. R. POWELL 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).