Citation Nr: 1520625 Decision Date: 05/13/15 Archive Date: 05/26/15 DOCKET NO. 05-22 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder manifested by anxiety and psychosis, to include as being secondary to an in-service harassment. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran was enlisted in the Kansas Army National Guard from March 16, 1978 through March 15, 2001, and during that time, had documented active duty service from September 1978 through May 1979 as well as periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center in Wichita, Kansas (the RO), which denied the Veteran's claim. The Veteran perfected an appeal of that denial. The Veteran testified during a March 2007 videoconference hearing. A transcript of that testimony is associated with the claims file. In a February 2010 letter, the Veteran and her representative were notified by the Board that the Veterans Law Judge who conducted the March 2007 hearing was no longer employed by the Board, and if the Veteran requested another hearing before a Veterans Law Judge, she was to respond within 30 days from the date of the letter. Neither the Veteran not her representative requested a new hearing. Accordingly, the Board will proceed with review of the case. See 38 C.F.R. § 20.707. In a June 2011 decision, the Board denied service connection for the claimed acquired psychiatric disorder. The Veteran subsequently appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Joint Motion for Remand, counsel on behalf of the Veteran and the VA secretary (the parties) asserted that the Board failed to explain adequately its reasons for determining that the Veteran's assertions of in-service harassment are not credible. In that regard, the parties noted that the Board impermissibly relied entirely on a finding that the claimed harassment was not corroborated in the record, and hence, was not in compliance with the Court's holding in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), which held that although the Board does have authority to weigh lay evidence against medical evidence, it may not dismiss lay evidence without a credibility determination "merely because [it is] not corroborated by contemporaneous medical records." Buchanan, 451 F.3d at 1336. Moreover, the parties argued, to the extent that the Board based its denial upon a finding that the alleged in-service harassment was not corroborated, the Board impermissibly required the corroboration of a stressor as an element for service connection for the Veteran's non-PTSD psychiatric disorder. In that regard, the parties argued, the Board failed to provide an explanation as to the significance of the absence of any corroborating evidence of the Veteran's claimed in-service harassment. The parties' motion was granted by the Court and the Board's June 2011 denial was vacated and remanded to the Board for further proceedings consistent with the parties' JMR. Subject to the above, the Board remanded this matter in June 2012 for further development, to include: verifying all periods of ACDUTRA and INACDUTRA; obtaining the Veteran's social security records; obtaining additional records for any private treatment identified by the Veteran, in particular, records from Cook County Mental Health Center, Valeo Health Center, and Shawnee County Health Agency; affording the Veteran a new VA examination of her claimed psychiatric disorder; and readjudication of the issue on appeal by the agency of original jurisdiction. For the reasons expressed below, the Board is of the opinion that still additional development is necessary. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the Board's April 2012 remand, the Veteran was afforded a VA examination in June 2014 to determine the nature of her psychiatric disorder and whether any diagnosed disorder is related to the Veteran's periods of active duty service, ACDUTRA, and/or INACDUTRA. The examiner diagnosed bipolar disorder with psychotic features but opined overall that it is less likely than not that the diagnosed disorder was incurred or aggravated during a period of ACDUTRA or INACDUTRA, that it was due to an injury incurred or aggravated during a period of ACDUTRA or INACDUTRA, or, that it is etiologically related to the Veteran's active duty service. As rationale, the examiner cited simply that there is insufficient information to conclude that any specific harassment that was severe enough to cause a psychiatric disorder occurred during service. The Veteran's attorney argues that the 2014 examination is inadequate. The Board agrees. To the extent that the VA examiner's opinion and rationale depends entirely on the solitary finding that the Veteran's reported instances of in-service harassment cannot be verified, the VA examiner's opinion does not provide adequate rationale to allow the Board to make a conclusion as to whether the bipolar disorder is related to the Veteran's periods of service, particularly given the Court's bases for vacating and remanding the Board's prior June 2011 denial. Indeed, the examiner failed to explain how the absence of any in-service harassment affects his ability to relate the Veteran's bipolar disorder to her periods of service. Further, no opinion was given as to whether the Veteran's bipolar disorder might have resulted from another injury, illness, or event that occurred during service (i.e. an in-service cause other than the claimed in-service harassment), or even, whether the Veteran's bipolar disorder was manifested during her periods of active duty service, ACDUTRA, or INACDUTRA. Accordingly, the Veteran should be afforded a new VA examination to determine whether her psychiatric disorder is related in any way to her periods of active duty service, ACDUTRA, and INACDUTRA. 38 C.F.R. § 3.159(c)(4). Prior to arranging the above examination, in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered psychiatric treatment since June 2014. VA must then also make efforts to obtain any additional treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding her claim for service connection for an acquired psychiatric disorder manifested by anxiety and psychosis, to include as secondary to in-service harassment. This letter must inform the Veteran about the information and evidence that is necessary to substantiate her claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA examination of her claimed psychiatric disorder. The Veteran should be advised that it remains her responsibility to report for the scheduled VA examination and to cooperate with the development of her claim; failure to report without good cause may result in denial of her claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided psychiatric treatment for her claimed psychiatric disorder since June 2014. 2. Make efforts to obtain the records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the foregoing development has been performed to the extent possible, the Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of her claimed psychiatric disorder. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. A full examination, to include an interview of the Veteran and any tests and studies deemed necessary by the examiner, should be conducted. The examiner should provide a multi-axial diagnosis that includes an Axis I diagnosis(es) based upon findings from the examination. For each provided diagnosis, the examiner should specifically discuss how the Veteran has met the DSM-V criteria for that disorder. The examiner should also comment upon the psychiatric diagnoses shown in the Veteran's private treatment records; VA treatment records; social security records; and previous June 2014 VA examination; and if appropriate, provide an explanation as to why he or she does or does not concur with these earlier findings and diagnoses. The examiner should also address the following specific questions: (a) in your opinion, based upon your review of the record to include the Veteran's service department records, did the Veteran demonstrate any symptoms or other indications (such as changes in behavior or decrease in the efficiency of her work performance) that are consistent with the onset of a psychiatric disorder during her period of active duty service, ACDUTRA, or INACDUTRA? In responding to this inquiry, the examiner is directed to consider (i) secondary records, (ii) the Veteran's medical records, personnel records, and (iii) any lay statements submitted by the Veteran and the examination report should reflect consideration of such evidence. (b) for each current diagnosed psychiatric disorder, is it at least as likely as not (a 50 percent probability or greater) that the disorder was incurred during the Veteran's period of active duty service, ACDUTRA, or INACDUTRA? (c) for each diagnosed disorder, is it at least as likely as not that the disorder was caused by or resulted from an injury or illness that occurred during the Veteran's period of active duty service, ACDUTRA, or INACDUTRA (to include but not limited to in-service incidents of harassment)? (d) if you believe that the Veteran does not have a current psychiatric disorder, or, that a current psychiatric diagnosis cannot be given, why do you believe that the Veteran does not have a current disorder, or, that a specific diagnosis cannot be made? If the examiner is unable to provide any of the opinions requested above without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner's opinions and rationale should be expressed in a typewritten and legible report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder manifested by anxiety and psychosis, to include as secondary to in-service harassment, should be readjudicated. If the determination remains adverse to the Veteran, she and her representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).