Citation Nr: 1518125	
Decision Date: 04/28/15    Archive Date: 05/05/15

DOCKET NO.  12-33 041	)	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 other than posttraumatic stress disorder (PTSD), to include depressive disorder, adjustment reaction, cognitive disorder, polysubstance abuse, and alcohol dependence.

2.  Entitlement to service connection for PTSD.

3.  Entitlement to nonservice-connected pension benefits.


ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1976 to April 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence.

The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran does not currently have, and has never had, a diagnosis of PTSD in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (DSM-IV).

2.  The Veteran does not have qualifying active service during a period of war.


CONCLUSIONS OF LAW

1.  The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2014).

2.  The legal criteria for basic eligibility for nonservice-connected pension benefits are not met.  38 U.S.C.A. §§ 101, 1521 (West 2014); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 

The RO provided notice to the Veteran in June 2010 and October 2010, prior to the initial adjudication of his claims in April 2011.  The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, as well as of VA and the Veteran's respective duties for obtaining evidence.  The notice letters addressed the rating criteria and effective date provisions that are pertinent to the Veteran's claims.  The October 2010 notice letter also adequately informed the Veteran of how to establish a claim for PTSD based on an in-service personal assault.  The October 2010 letter specifically informed the Veteran of evidence he could submit in support of the claim for PTSD due to personal assault, to include statements from persons who knew him in service, records or statements from service medical personnel, reports of private physicians, dates of medical treatment, police reports or medical treatment records for assault or rape, or statements from individuals with whom he may have discussed the incident.  For these reasons, the Board finds that the Veteran has received adequate notice regarding the claim for PTSD based on a claimed in-service personal assault.

VA satisfied its duty to assist the Veteran in the development of the claims.  VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence associated with the claims file include the Veteran's service treatment records, VA treatment reports, Social Security Administration (SSA) records, and lay statements.  The Veteran has not identified any relevant records aside from those that are already in evidence.  The Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.

The Veteran was afforded a VA psychiatric examination in September 2010.  While the examiner did not directly address the issue of PTSD, the VA examiner observed the Veteran in a clinical setting and provided diagnoses which, relevantly, did not include a diagnosis of PTSD.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  Because the September 2010 VA examination and the other medical evidence of record, as discussed further below, establishes that the Veteran has never been diagnosed with PTSD, despite being given multiple, thorough mental health evaluations during his treatment, the Board finds that VA has no further duty to provide an examination.  38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006).  

The Board notes that the issue of service connection for an acquired psychiatric disability other than PTSD is being remanded for a VA examination to obtain opinions regarding the psychiatric conditions with which the Veteran has been diagnosed by competent mental health professionals.  Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant.").  While the claim regarding service connection for an acquired psychiatric disability other than PTSD is being remanded due to an inadequacy of a portion of the September 2010 VA examination (discussed in detail in the Remand section below), the fact that one part of a medical opinion may be inadequate (or arguably "insufficient") does not render the entire opinion "void," particularly dealing with complex medical diagnosis issues, if that part of the medical opinion has actual validity (based on a review of the evidence).  The Board finds that the September 2010 VA examination is adequate with regard to the claim of service connection for PTSD.  The opinion, as a whole, considers all the pertinent evidence of record, to include the statements of the Veteran, and provided complete rationales for the opinions stated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue of service connection for PTSD has been met.  38 C.F.R. § 3.159(c)(4).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

With respect to the issue of entitlement to nonservice-connected pension benefits, because the application of the law to the undisputed facts is dispositive of the claim, no discussion of VA's duties to notify and assist is necessary.  See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).

II. General Legal Standards

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Prinicipi, 
381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Veteran's service connection claims relate to PTSD.  PTSD is not one of the "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For disabilities that are not service-connected under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).  See Walker, 708 F.3d at 1338-39.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2014).

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 
10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

III.  Service Connection for PTSD

Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror.  38 C.F.R. § 3.304(f); see also DSM-IV § 309.81 (4th ed. 1994).

The Board notes that, for claims received by, or pending before the AOJ, on or after August 4, 2014, the provisions of 38 C.F.R. § 4.125 have been amended to require that a PTSD diagnosis conform to the Fifth Edition (DSM-5).  See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014).  However, the Board also observes that, in setting the effective date for the change in the regulation, the Secretary of the Department of Veterans Affairs stated, "The Secretary does not intend for the provisions of this interim final rule to apply to claims that have been certified for appeal to the Board of Veterans' Appeals or are pending before the Board of Veterans' Appeals , the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit."  (emphasis added) 79 Fed.Reg. 45093 -94 (Aug, 4, 2014).  As this claim was pending before the Board when the new regulation became effective, application of the DSM-5 does not apply in this case.

With respect to PTSD, the opinions of several mental health professionals regarding the Veteran's psychiatric disabilities are of record, and each of those mental health professionals is presumably qualified by training and experience to render an opinion.  Each of these opinions constitutes probative evidence.  Moreover, the opinions regarding are all against the Veteran's claim.

The Veteran contends that he is entitled to service connection for PTSD, which he asserts is due to his experiences in active service.  See, e.g., June 2010 VA Form 21-526 (indicating mental health issues incurred during service); July 2010 VA Form 21-526b (alleging PTSD due to in-service "personal trauma").  The Veteran does not contend that he was diagnosed with PTSD during his active military service, nor do his service treatment records indicate or document any diagnosis of PTSD during active service.  The March 1976 in-service psychiatric evaluation indicates that the Veteran had "no mental or physical disability which would warrant his discharge by reason of physical disability" and that "there is no requirement for psychiatric hospitalization or treatment at this time."  There are no other service records documenting an in-service diagnosis of PTSD or symptoms of PTSD.  The Board finds that the Veteran did not have PTSD during his active military service or at separation.  The dispositive question in this case is whether he has PTSD at this time.

The Veteran's own conclusory, lay allegations, unsupported by identification of specific stressors or symptoms, are not, in the circumstances of this case, competent evidence of a diagnosis of the Veteran's psychiatric symptoms.  The Veteran lacks the medical training and expertise needed to provide a complex medical opinion such as diagnosing a mental health condition and determining the etiology of an acquired psychiatric disorder where multiple pre-service and post-service stressors are present.  See Jandreau, 492 F.3d at 1376-77; see also Clemons, 23 Vet. App. at 6; see also 38 C.F.R. § 4.125(a).

In the course of the development of the claim, the Veteran underwent a VA psychiatric examination.  The VA examiner concluded that the Veteran's symptoms were properly diagnosable as: Adjustment reaction, not related to military service; Cognitive Disorder, NOS; Polysubstance Abuse.  See September 2010 VA Examination; 38 C.F.R. § 4.125(a) (directing that, for VA compensation purposes, the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV)).  The Board finds the VA examiner's diagnoses are well-supported and, therefore, of significant probative value.  See Nieves-Rodriguez, 22 Vet. App. at 304.

None of the mental health professionals who have treated the Veteran have offered a diagnosis of PTSD.  For instance, the Veteran's VA mental health providers have diagnosed him with substance abuse/dependence, bereavement, and depressive disorder, but not PTSD.   See, e.g., November 2012 VA Mental Health Note ("alcohol dependence in sustained remission, depressive disorder in remission, and likelihood of underlying learning disorder/mild MR"); May 2011 VA Mental Health Domiciliary Note (Alcohol Dependence and Depressive Disorder NOS); February 2011 VA Mental Health Note ("Alcohol Dependence in Remission, Depressive Disorder NOS, r/o intermittent explosive disorder, r/o bipolar disorder"); July 2010 VA Psychiatric Inpatient Note ("Etoh dependence is only Axis I disorder noted at this time.").  Although one VA treatment record indicates a positive PTSD screening test (see October 2010 VA Mental Health Social Work Intake Note Addendum), the PTSD screening test documented in the associated intake note was negative.  See October 2010 VA Mental Health Social Work Intake Note ("A PTSD screening test (PTSD 4Q) was negative (score=0).").  In any event, a positive PTSD screening test is not a diagnosis and subsequent mental health treatment notes include the results of thorough mental health evaluations, which resulted in diagnoses of alcohol dependence and depression, but not PTSD.  See, e.g., November 2010 VA Psychology Consult (containing results of neuropsychiatric evaluation); May 2011 VA Mental Health Domiciliary Note (Alcohol Dependence and Depressive Disorder NOS); February 2011 VA Mental Health Note ("Alcohol Dependence in Remission, Depressive Disorder NOS, r/o intermittent explosive disorder, r/o bipolar disorder").

There is no other medical evidence suggesting that, contrary to the opinions of these mental health professionals, the Veteran's symptomatology does meet the DSM-IV criteria for a current diagnosis of PTSD.  The Board finds that the weight of the evidence of record demonstrates that the Veteran does not have a currently diagnosed PTSD disability in accordance with the DSM-IV criteria.  The threshold requirement for service connection to be granted is competent evidence of the current existence of the claimed disorder.  See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Board is also cognizant of the United States Court of Appeals for Veterans Claims (Court's) holding in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  In Romanowsky, the Court held that, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  In a footnote, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance."  

However, the evidence in this case does not demonstrate a diagnosis of PTSD in accordance with the DSM-IV criteria at any point during the claim period or even recent diagnosis prior to the filing of the claim for service connection.  Therefore, without a current disability of PTSD, the criteria for service connection for the claimed PTSD are not met.  38 C.F.R. § 4.125(a).  Because the Veteran does not have a current diagnosis of PTSD in accordance with the DSM-IV criteria, the Board does not reach the additional questions of in-service stressors and nexus to the in-service stressors.

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of the claimed condition (PTSD) in accordance with the DSM-IV criteria as required under 38 C.F.R. § 4.125(a); therefore, service connection for PTSD is not warranted.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

IV.  Non-Service-Connected Pension

The Veteran contends that he is entitled to nonservice-connected pension benefits due to nonservice-connected disabilities.  Specifically, the Veteran argues that he has residuals of a fractured left hand, a nerve condition affecting his hands, mental health conditions, and a back condition.  June 2010 VA Form 21-526 (Formal Claim).  VA treatment records document treatment for various physical and mental ailments.  

The Board acknowledges that the Veteran has various, current conditions; however, the Board finds that the Veteran is not legally entitled to nonservice-connected pension benefits.  Basic entitlement to pension exists if a veteran served in the active military, naval, or air service for 90 days or more during a period of war; or served in the active military, naval, or air service during a period of war and was discharged or released from such service for a service-connected disability; or served in the active military, naval, or air service for a period of 90 consecutive days or more and such period began or ended during a period of war; or served in the active military, naval, or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war.  38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3) (2014).

Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.  38 U.S.C.A. § 101(24) (West 2014); 38 C.F.R. § 3.6(a).

The period of war for the Vietnam Era is the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period, and the period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases.  38 C.F.R. § 3.2(f) (2014).  The period of war for the Persian Gulf War is the period beginning on August 2, 1990, through a date to be prescribed by Presidential Proclamation or law.  38 C.F.R. § 3.2(i) (2014).

Upon reviewing the evidence of record, including most pertinently a report of separation from active duty (DD 214), the Veteran began active service in March 1976 and was discharged twenty-nine (29) days later in April 1976.  As documented in the Form DD-4c (Enlistment or Recruitment Agreement), the Veteran had previously enlisted in the U.S. Marine Corps Reserves in November 1975.  The record does not indicate that he had any period of active duty for training or inactive duty for training during the roughly three (3) months in the U.S. Marine Corps Reserves.  In any event, his active service began (and his enlistment in the reserves occurred) many months after the official end of the Vietnam War on May 7, 1975.  38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f).  The Veteran was released from active service in April 1976.  The Board notes that the next official period of war, specifically the Persian Gulf War, did not officially begin until August 2, 1990.  38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i).

Because the Veteran did not have any active service during a period of war, the Board finds, as a matter of law, that he does not meet the requirements of 38 U.S.C.A. § 1521(j) for eligibility for nonservice-connected pension.  As the 

evidence indicates that the Veteran fails to meet the threshold eligibility for a nonservice-connected pension under the law, the claim lacks legal merit and must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Service connection for PTSD is denied.

Entitlement to nonservice-connected pension benefits is denied.


REMAND

The Veteran was afforded a VA examination in September 2010 in connection with his claim of entitlement to service connection for an acquired psychiatric disability other than PTSD.  Where VA provides an examination, the examination must be adequate.  Barr, 21 Vet. App. at 311 (2007) ("once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one").  

The September 2010 VA examiner diagnosed adjustment reaction, cognitive disorder, and polysubstance abuse.  The VA examiner opined that the diagnosed conditions were less likely than not caused by his active service and, as explanation, indicated that the conditions likely pre-existed the Veteran's active service.  Therefore, the VA examiner's opinion raises the issue of a pre-existing acquired psychiatric disorder.  

Under applicable law, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  See 38 U.S.C.A. § 1111 (West 2014).  The term "noted" denotes only such conditions that are recorded in examination reports.  38 C.F.R. § 3.304(b).  Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  Id.

The Veteran's entrance examination does not indicate any pre-existing psychiatric disorder.  The entrance examination indicated a normal psychiatric evaluation; as such, the presumption of soundness applies and the burden falls upon VA to rebut the presumption of soundness by showing clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation.  Additional medical evidence is necessary to answer the pertinent legal questions.

First, to the extent the VA examiner based her opinion on the existence of a pre-existing psychiatric disorder that manifested in service, clarification is required to determine the degree of medical certainty of the opinion that the diagnosed conditions pre-existed the Veteran's service.  Mozingo v. Shinseki, 26 Vet.App. 97, 107 (2012) ("VA is required, however, to return VA examination reports for clarification where the report contains insufficient detail.").   In addition, assuming one or more of the conditions pre-existed service, an adequate opinion must address whether the Veteran's pre-existing condition(s) was aggravated beyond its normal progression by his active service.  Id.; see 38 C.F.R. § 3.304(b) (presumption of soundness may only be rebutted by "clear and unmistakable evidence" both that "the injury or disease existed prior [to active service]" and that the condition "was not aggravated by such service").

Second, the Board also requires opinions regarding whether any of the acquired psychiatric disorders diagnosed by the Veteran's treating mental health professionals during the period on appeal, in addition to those diagnosed by the VA examiner, were incurred in, or caused by, an event or injury during his active service.   38 U.C.S. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006) (holding VA must provide an examination where there is evidence of a current disability or symptoms of a current disability, an in-service event or injury, and an indication that there may be an association between the current disability and the in-service event or injury).  The Veteran has been diagnosed with depressive disorder, adjustment reaction, cognitive disorder, polysubstance abuse, and alcohol dependence.  The threshold for obtaining an examination under the McLendon standard is "low".  McLendon, 20 Vet. App. at 85-86.  Therefore, the Veteran is entitled to an examination and opinions regarding whether any of his diagnosed acquired psychiatric disorders are etiologically related to an in-service injury or disease.  Id.; Stefl, 21 Vet. App. at 123-24.

Accordingly, the issue of service connection for service connection for an acquired psychiatric disability other than PTSD, to include depressive disorder, adjustment reaction, cognitive disorder, polysubstance abuse, and alcohol dependence, is REMANDED for the following actions:

1. Obtain and associate with the claims file all outstanding VA treatment records including any records generated by the Milwaukee VAMC (if any) and any other VA facilities from November 2012 to the present.

2. After completion of the above action, if possible, obtain an addendum medical opinion from the VA psychologist who conducted the September 2010 VA examination, to attempt to ascertain the nature and etiology of the acquired psychiatric disorders other than PTSD with which the Veteran has been diagnosed, to include, but not limited to, depressive disorder, adjustment reaction, cognitive disorder, polysubstance abuse, and alcohol dependence.  The relevant documents in the claims file should be made available to, and be reviewed by, the VA examiner.  The VA examiner should note such review in the examination report (another examination of the Veteran is not required unless deemed necessary by the examiner).

If the September 2010 VA examiner is not available, obtain the requested opinion from another VA mental health professional and, if possible, from a VA psychologist or psychiatrist.  If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary.

Based upon a review of the record, including the Veteran's medical history, service treatment records, and post-service VA and private treatment records, the VA examiner is requested to offer the following opinions with respect to each diagnosed acquired psychiatric disorder, to include, but not limited to, depressive disorder, adjustment reaction, cognitive disorder, polysubstance abuse, and alcohol dependence:

a) For each acquired psychiatric disorder with which the Veteran has been diagnosed, did the Veteran's acquired psychiatric disorder clearly and unmistakably exist prior to entrance into service in March 1976?

b) For each acquired psychiatric disorder that, in the VA examiner's opinion, preexisted service, was the pre-existing acquired psychiatric disorder clearly and unmistakably not aggravated (not permanently worsened beyond the natural progression) during active service?

Note: The term aggravated means a lasting increase in severity of the underlying disability that is not due to the natural progress of the disease.  An exacerbation of symptoms during service does not constitute aggravation.  Moreover, if the disability becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, there is no aggravation.

c) For each acquired psychiatric disorder with which the Veteran has been diagnosed and which the examiner concludes did not pre-exist the Veteran's service or, if it did, that it was not permanently worsened by service beyond natural progression, the VA examiner should provide the following opinion:

Is it at least as likely as not (a 50 percent probability or greater) that the diagnosed acquired psychiatric disorder began, had onset in, or is otherwise caused by, or related to, active service?

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

For each of the requested opinions, a rationale should be given for all opinions and conclusions rendered.  The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to these claims.

3. After completion of the above and any additional development deemed necessary, the claim for service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, adjustment reaction, cognitive disorder, polysubstance abuse, and alcohol dependence, should be readjudicated in light of all the evidence of record.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case.  An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

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 2014).



____________________________________________
L.M. YASUI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs