Citation Nr: 1343019	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  10-24 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to service connection for kidney stones.

2. Entitlement to service connection for a right shoulder condition.

3. Entitlement to service connection for a bilateral knee condition. 

4. Entitlement to service connection for a bilateral ankle condition.

5. Entitlement to service connection for an abscess of the lower back.

6. Entitlement to service connection for migraine headaches.

7. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder, and generalized anxiety disorder.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from July 2004 to July 2008.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

A hearing before the undersigned Veterans Law Judge was held at the RO in September 2011.  A transcript of the hearing has been associated with the claims file.

The Board notes that the Veteran has claimed and the RO adjudicated service connection for PTSD and adjustment disorder as separate issues.  Recent case law mandates that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).  The Board notes that the Veteran also appears to have been diagnosed with generalized anxiety disorder.  As such, given the holding in Clemons, the Board has combined and recharacterized the issues of entitlement to service connection for PTSD and adjustment disorder to the broader issue of entitlement of service connection for an acquired psychiatric disability and includes generalized anxiety disorder into the claim.  See Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005), Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision).  

The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claims currently on appeal.

The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, adjustment disorder and generalized anxiety disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if additional action is required on his part.


FINDINGS OF FACT

1. In a September 2011 statement, prior to the promulgation of a decision in this appeal, the Veteran expressly withdrew his appeal from the denial of service connection for kidney stones.

2. In a September 2011 statement, prior to the promulgation of a decision in this appeal, the Veteran expressly withdrew his appeal from the denial of service connection for a right shoulder condition.

3. In a September 2011 statement, prior to the promulgation of a decision in this appeal, the Veteran expressly withdrew his appeal from the denial of service connection for a bilateral knee condition.

4. In a September 2011 statement, prior to the promulgation of a decision in this appeal, the Veteran expressly withdrew his appeal from the denial of service connection for a bilateral ankle condition.

5. The evidence of record reasonably shows that the Veteran's recurrent abscess on the lower back is related to active service. 

6. The evidence of record reasonably shows that the Veteran's migraine headaches are related to active service. 


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for kidney stones have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

2. The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for a right shoulder condition have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

3. The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for a bilateral knee condition have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

4. The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for a bilateral ankle condition have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

5. Resolving reasonable doubt in the Veteran's favor, the criteria for establishing service connection for an abscess of the lower back are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).

6. Resolving reasonable doubt in the Veteran's favor, the criteria for establishing service connection for migraine headaches are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Issues Withdrawn

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his/her authorized representative.  38 C.F.R. § 20.204.

In a September 2011 statement, the Veteran stated he wished to withdraw his appeal for entitlement to service connection for kidney stones, a right shoulder condition, a bilateral knee condition, and a bilateral ankle condition.  This was confirmed at the September 2011 Board hearing before the undersigned Veterans Law Judge.  Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue.  Accordingly, the Board does not have jurisdiction to review the appeal on this matter, and these issues are dismissed.

II. The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

As the Board's decision to grant service connection for an abscess of the lower back and migraine headaches herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations.

III. The Merits of the Claims

The Veteran contends that he currently suffers from a recurrent abscess of the lower back and migraine headaches as a results of his active duty service. 

Governing Rules and Regulations

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) in certain cases the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Here, the Board notes that the Veteran has been diagnosed with coccygeal abscess which is not one of those conditions subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). 

However, the Veteran has been diagnosed with migraine headaches, and although it has not been specifically enumerated under 38 C.F.R. § 3.309(a), it may be considered as an organic disease of the nervous system.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303.

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact.  The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. 
§ 3.102.

Factual Background and Analysis

Initially, the Board notes that the Veteran's service treatment records are absent from the record.  According to the VA's October 2009 Memorandum, a formal finding of unavailability of the service treatment records was made. 

Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

Because the Veteran's service treatment records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind.  It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant.  See Russo v. Brown, 9 Vet. App. 46 (1996).

The Veteran testified at the September 2011 Board hearing that he first noticed the abscess on his back at the end of 2006 or the beginning of 2007 during his second deployment.  The Veteran stated the abscess would grow until the skin breaks and then would drain.  He stated that the abscess would return frequently, approximately every week.  Once he returned from overseas it would reoccur every three weeks to a month and half.  He stated after he was separated from service he had surgery on it at the end of 2008 or the beginning of 2009, within one year of separation.  The Veteran testified that the abscess still returns and restricts his employment as he cannot move due to pain.  He stated the abscess will break open and he keeps it clean until it heals. 

According to the post-service treatment records, in December 2008, the Veteran's VA physician noted a "[r]ecurrent coccygeal lesion, abscess vs. cyst, currently without evidence of infection."  A general surgery consult for the "abscess[-] like lesion" was also noted. 

The Veteran underwent a general VA examination in August 2009 where a surgical history noted that on December 30, 2008, an incision and drainage of an abscess at the upper portion of the gluteal fold was done.  The Veteran reported that he sought treatment for the abscess while stationed in Iraq and after he returned and was stationed at Camp Lejeune.  He sought treatment following separation and underwent surgery in late 2008.  The Veteran stated that a month after the surgery, swelling and pain returned.  He stated the abscess occurred every two to three weeks, intermittently, and he has developed swelling and tenderness.  The area will drain and heal over.  The Veteran stated the swelling will last for three days, the drainage will last for three days and the area will then heal.  

A physical examination revealed "chronic-appearing, pink, scaly skin at the 11 o'clock position that the [V]eteran reported would swell, become tender, and drain.  This area was dry.  There was no erythema or fluctuation,  There was no drainage.  The area was 2 cm round.  At 1.5 cm below this area is a small, punctated area that is 2 mm round and 1 mm deep with no redness, warmth, and swelling, or drainage.  The [V]eteran stated this area never drains."  The examiner diagnosed with Veteran with a recurrent coccygeal abscess.  No etiological opinion was offered. 

Regarding his claim for entitlement to service connection for migraine headaches, the Veteran's contends that he began experiencing migraine headaches during his active service.  At the August 2009 VA examination, the Veteran reported that his migraine headaches began in October 2005 after his first deployment to Iraq.  He stated that after he returned to Camp Lejeune, he noted headaches on his post-deployment health assessment.  He was not given a diagnosis.  The Veteran stated he was advised to use Motrin for his headaches and denied any further treatment during his military service.  

He stated that the migraines occurred two to three times a week and he still self-medicates with Motrin.  He reported an incapacitating episode due to headaches in February 2009 when he stayed in bed for six or seven hours.  The Veteran was subsequently diagnosed with migraine headaches.

In September 2011, the Veteran testified at the Board hearing that he continued to experience migraine headaches upon separation from service and sought treatment at the VA medical center in Charleston, South Carolina.  The Board acknowledges that the December 2008 VA treatment record confirms that the Veteran complained of, and sought treatment for, his headaches.

With regard to the Veteran's assertions that his recurrent abscess and migraine headaches began during active duty and have continued following service, the Board finds that the Veteran is competent and credible to report the onset and recurrent or persistent nature of symptoms.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness).  

While the Veteran's currently diagnosed recurrent coccygeal abscess and migraine headaches are not chronic diseases listed under 38 C.F.R. § 3.309(a), the Board nonetheless finds that the Veteran had symptoms of his abscess and migraines in service and that those symptoms have more or less persisted since discharge from service.  Under 38 U.S.C.A. § 1154(a) and 38 C.F.R. § 3.303(a), this is a permissible finding, as it may be with any injury or disease a veteran may assert is related to service.  See Buchanan v. Nicholson, 451 F.3d. 1331(Fed. Cir. 2006).  In this regard, the Veteran stated he was treated for an abscess of the lower back during service and sought treatment shortly after discharge from service, in December 2008.  In addition, regarding his migraines, the Veteran stated his migraines first started during his military service and he first sought treatment soon after separation, also in December 2008.  The Veteran has continued to report his abscess and headaches have been recurrent since service.  Based on the Veteran's competent and credible statements, treatment for a recurrent coccygeal abscess and migraine headaches contemporaneous to the Veteran's discharge from service and thereafter, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current abscess of the lower back and migraine headaches began during service, and as such service connection is warranted.  38 U.S.C.A. §§ 1154(a), 5107(b); 38 C.F.R. §§3.102, 3.303(a).


ORDER

Entitlement to service connection for an abscess of the lower back is granted.

Entitlement to service connection for migraine headaches is granted.


REMAND

Unfortunately, a remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013).

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013).

The Veteran claims service connection is warranted for an acquired psychiatric disorder, to include PTSD, adjustment disorder, and generalized anxiety disorder, based on in-service occurrence.  

In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997).

The American Psychiatric Association:  DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV) provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror."  DSM-IV at 427-28.

With regard to the second criterion, evidence of an in-service stressor event, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy."  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). 

If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. 38 C.F.R. § 3.304(f).

Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor.  Doran v. Brown, 6 Vet. App. 283, 289 (1994); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor.  West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

However, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  The amended 38 C.F.R. 3.304(f) adds the following: 

If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39,843-852 (July 13, 2010).  The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010.

According to the Veteran's DD 214, he was stationed in Iraq from March 12, 2005, to April 13, 2006, and from September 9, 2006 to October 10, 2006.  He was awarded the Combat Action Ribbon, the Iraq Campaign Medal, the Global War on Terrorism Expedition Medal, the Global War on Terrorism Service Medal, the National Defense Service Medal, and the Rifle Qualification Badge, among others.  The Veteran's MOS was listed as Machine Gunner.  As such, the Board concedes that the Veteran has engaged in combat.

According to the evidence of record, the Veteran's VA treatment records do not indicate a diagnosis for PTSD.  Rather, a diagnosis for adjustment disorder with anxiety was made.  The Veteran was afforded a VA PTSD examination in July 2009 whereupon following examination and a review of the claims file and the Veteran's lay statements, the examiner determined that the Veteran did not meet the full criteria for a PTSD diagnosis under DSM-IV.  There is also no etiological opinion whether the Veteran's adjustment disorder was related to his military service.

However, in September 2011, J.H. Mercuri, a private licensed clinical social worker (LCSW), diagnosed the Veteran with PTSD and generalized anxiety disorder.  It is unclear whether the diagnosis for PTSD conforms to the DSM-IV criteria.  An etiological opinion provided by the J.H. Mercuri stated the Veteran's chronic PTSD was related to his military service.

Given the presence of two conflicting diagnoses and nexus opinions within the record, the Board finds this claim should be remanded for a VA examination to clarify the Veteran's diagnosis and obtain an adequate etiological opinion.  Thus, the Board finds that there is insufficient competent medical evidence on file to make a decision on this issue and must therefore remand to obtain an examination and medical nexus opinion regarding the etiology of the claimed acquired psychiatric disorder.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Furthermore, on remand, the RO must secure any outstanding records and associated them with the claims file.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment.

In addition, obtain all private treatment records which have not been obtained already.  The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions.

If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record. 

Notice must be provided to the Veteran and his representative.  The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence.  The AMC should also inform the Veteran that he can also provide alternative forms of evidence.

2. Once all outstanding records, if any, are obtained and associated with the claims file, schedule a VA examination with an appropriate specialist to obtain a medical opinion concerning the Veteran's present acquired psychiatric disorder, to include PTSD, adjustment disorder, and generalized anxiety disorder.  The examination should include all necessary diagnostic testing and evaluation.  The claims file must be made available for review of the pertinent medical and other history. 

The examiner should respond to the following:

a. Confirm the existence of any current acquired psychiatric disorders, making specific findings regarding whether the Veteran satisfies the DSM-IV criteria of the American Psychiatric Association for respective diagnoses, including PTSD, adjustment disorder, and generalized anxiety disorder.  In particular, specifically confirm whether the Veteran has a current PTSD diagnosis.

b. If a current PTSD diagnosis is confirmed, then opine whether it is at least as likely as not (50 percent probability or greater) that it is attributable to any reported in-service stressor.

c. Exclusive of PTSD, if the examiner confirms the existence of any other currently diagnosed psychiatric disability (whatever the specific diagnosis), did it at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's active duty military service, or is any such disability otherwise related to such period of service, including to any reported in-service stressor?

The term "at least as likely as not" (at least 50 percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

Rationale for all requested opinions shall be provided.  The examiner should acknowledge and discuss the Veteran's lay statements of onset and symptomatology, and the determinations of the July 2009 VA examiner and J.H. Mercuri, LCSW.  

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. Review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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. 2013).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs