Citation Nr: 1432002 Decision Date: 07/16/14 Archive Date: 07/22/14 DOCKET NO. 09-16 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and bipolar disorder. 2. Entitlement to service connection for a gynecological disorder to include residuals of a ruptured right ovarian cyst. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from August 1978 to July 1983. She served in the United States Navy Reserve from July 1986 to July 1988 with a period of active duty for training (ACDUTRA) from May 17, 1987, to May 29, 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This case has been before the Board previously on three occasions, in May 2012, June 2013, and November 2013. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regarding both claims, it appears that the most recent VA treatment records associated with the claims file, with the exception of recent VA examination reports and addenda, are dated in November 2010. On remand, the Veteran's updated VA treatment records should be obtained and associated with the claims file. Also, in its November 2013 remand, the Board noted that the Veteran stated that she received treatment from the VA Medical Center (VAMC) in San Diego from January 1983 to December 2004. The Board provided a recitation of the pertinent history as to obtaining relevant VA treatment records as follows: "According to a September 2007 Formal Finding of Unavailability regarding these records the RO noted that the San Diego VAMC indicated that they did not have the records. The RO then contacted the Palo Alto VAMC, who notified the RO that the records had been retired to the Federal Records Center. The RO then attempted to obtain the records from the Federal Records Center but was told only a VAMC could request the records. So the RO faxed a request to the San Diego VAMC to obtain the records from the Federal Records Center but received no response. The RO then called the Palo Alto and San Diego VAMCs and received a response that they had no records for the Veteran. The RO then determined that all efforts to obtain the records had been exhausted. However, the RO already knew that the VAMCs in San Diego and Palo Alto did not have records for the Veteran and needed instead for these facilities to request the records from the Federal Records Center." The Board, in November 2013, determined that it was not clear from the record that what was needed had been fulfilled; namely that a VAMC has successfully contacted the Federal Records Center to determine whether there are pertinent treatment records for the Veteran there. The Board directed the AMC to remedy such on remand and concluded that a response from the Federal Records Center and/or relevant VAMC regarding contact with the Federal Records Center must be of record and efforts to obtain the records must be reflected in the claims file. A February 28, 2014, Report of Contact, indicates that the AMC spoke to a staff person at the Palo Alto VAMC and was informed that no records were kept at the facility, and all records are sent to a contractor and the AMC could request that the Palo Alto VAMC request such records from the contactor. A February 28, 2014, Report of Contact, indicates that the AMC spoke to a staff person at the San Diego VAMC and was informed that no records were stored at a Federal Records Center and no records for the Veteran were at the VAMC in San Diego, and no records of mention were sent out to any location for storage. In a March 4, 2014 response, the VAMC in Palo Alto reported that there were no records at all. A March 27, 2014, Report of Contact, indicates that the AMC spoke to another staff person at the Palo Alto VAMC and was informed that they did not have any records for the Veteran. Thus, while the VAMC in San Diego has never indicated that its records were sent to a Federal Records Center and responded to the AMC's post-November 2013 Board remand inquiry with a statement indicating that no records were stored at a Federal Records Center, or at any other location; it remains that the AMC did not obtain a sufficient response from the VAMC in Palo Alto. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). It was the VAMC in Palo Alto's prior indication that gave rise to the November 2013 remand directive regarding searching for records at the Federal Records Center. Again, the VAMC in Palo Alto responded to the AMC's post-November 2013 Board remand inquiry that records were sent to a contractor and that the AMC could request that the Palo Alto VAMC request such from the facility. The Palo Alto VAMC's subsequent responses indicating that there were no records for the Veteran do not represent substantial compliance with the Board's November 2013 remand directive. The fact that the VAMC in Palo Alto does not possess any of the Veteran's VA treatment records is not in question; as such conclusion has been made a matter of record numerous times over the course of the appeal. The VAMC in Palo Alto is still required to respond fully to the AMC's inquiries as to any VA treatment records of the Veteran at a Federal Records Center, via any contractor. On remand, the AMC should request that the Palo Alto VAMC issue a request to the Federal Records Center via any contractor used, to determine if there exists any outstanding VA treatment records. As to the Veteran's claim for an acquired psychiatric disorder, the Board, in its November 2013 remand, directed the AMC to obtain an addendum opinion considering the Veteran's July 2010 statement that she was afraid that a man who entered her temporary barracks room in 1979 would hurt her if she did not comply with his demand for a sexual act. Prior VA examination results revealed that the Veteran did not meet a criterion for a diagnosis of PTSD as she did not report intense fear, helplessness, or horror. The examiner simply issued an addendum opinion, in March 2014, in essence re-issuing her prior opinion and including the notation that of record was a written statement from the Veteran reflecting fear concerning the incident. Stegall, 11 Vet. App. 268. There was no discussion. If the examiner intended to convey that the Veteran's written statement, in July 2010, did not offer evidence that her response to the event rose to the level of intense fear, helplessness, or horror, or other traumatic response, the examiner must state as such. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). On remand, another addendum opinion is required. The examiner should consider and discuss the Veteran's July 2010 statement. Further, no examiner has discussed the Veteran's April 1980 in-service treatment record indicating lethargy that may have been due to mild depressive symptoms. The Veteran, to date, has not asserted that her 1987 assault, while she was in the Naval Reserve, occurred during her 1987 period of ACDUTRA. Accordingly, the case is REMANDED for the following action: 1. Make arrangements for the Palo Alto VAMC to contact the Federal Records Center, via any contractor, if any, and request treatment records for the Veteran from January 1983 through December 2004. All efforts to obtain these records should be reflected in the claims file. A response from the Federal Record Center and/or relevant VAMC regarding contact with the Federal Record Center, or any contractor, if any, must be evident. If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning the claims. 2. Obtain and associate with the Veteran's claims file her VA treatment records maintained by the VAMC in Milwaukee, dated from November 2010 to the present. Any and all responses, including negative responses, must be properly documented in the claims file. If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning the claims. 3. Thereafter, return the Veteran's claims file to the examiner who conducted the September 2010 examination and who offered the June 2013 and March 2014 addenda. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. (a) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has PTSD, per applicable DSM criteria, based on her claimed in-service stressors, her in-service personal assaults, considering and specifically addressing the Veteran's July 2010 statement, in which she describes being forced to perform a sexual act on a man who entered her temporary barracks room in 1979 and reported that she was afraid that he was going to harm her if she did not comply with his demand. (b) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's acquired psychiatric disorder, to include bipolar disorder, as well as clinical findings of depression and anxiety, were incurred in service, or are otherwise related to service, specifically considering the Veteran's claimed in-service stressors, her in-service personal assaults, and considering her in-service April 1980 notation of lethargy that may have been due to mild depressive symptoms. The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. A complete explanation for such a finding must be provided. 4. If, and only if, new gynecological treatment records are received as a result of actions directed herein, forward the Veteran's claims file to the examiner who conducted the June 2012 VA examination and who offered the July 2013 addendum opinion to ascertain if review of such records warrants a change in the submitted etiological opinions. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. 5. After the above has been completed, the AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ S. L. Kennedy 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).