Citation Nr: 1541332 Decision Date: 09/24/15 Archive Date: 10/02/15 DOCKET NO. 10-19 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Mary Anne Royle, Attorney WITNESSES AT HEARING ON APPEAL Appellant, Father, and C.U. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1986 to November 1988. She had subsequent active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), including a 16-day period of ACDUTRA beginning on May 23, 1997. The PTSD issue on appeal comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims in April 2014, which partially vacated a December 2013 Board decision and remanded the matter for additional development. The headaches issue initially arose from a December 2008 rating decision by the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the headache issue for additional development in December 2013 and April 2014. In June 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In July 2014, the Board remanded these issues for additional development. REMAND A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the Board's July 2014 remand instructions, the Veteran was provided with VA examinations in November 2014 for PTSD and headaches to address the etiology of each diagnosed psychiatric disorder and headache disorder. The July 2014 remand specifically instructed that a VA psychiatrist was to perform the examination. However, a VA psychologist actually performed the examination and provided the opinion. In addition, the November 2014 VA examiner provided conflicting findings in that the psychologist initially concluded that the Veteran did not have a diagnosis of PTSD, but then stated that "based on available information, she meets diagnostic criteria for PTSD." Further, the examiner did not reconcile other VA opinions of record as to the etiology of PTSD. Thus, the Board finds that a new VA examination and opinion to address whether the Veteran meets the criteria for a diagnosis of PTSD and if so, the etiology. Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be obtained). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). With regard to the November 2014 VA headaches examination, the July 2014 remand instructions requested an etiological opinion on a direct and secondary basis regarding whether any headache disability was related to service or was caused or aggravated by a service-connected disability. While the November 2014 VA headaches examiner provide an opinion as to direct service connection, no opinion was provided as to service connection on a secondary basis. In this case, the Veteran is claiming that her headaches are related to or aggravated by PTSD. The headache claim is therefore inextricably intertwined with the PTSD issue. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a claim for the other). Lastly, the Board notes that the most recent VA medical records associated with the claims file are dated in October 2014. To aid in adjudication, any subsequent VA medical records should be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA medical records dated from October 2014 to the present. 2. Then, schedule the Veteran for a VA examination, by a medical doctor psychiatrist. The psychiatrist must review the claims file and must note that review in the report. The report of examination should include a complete rationale for all opinions expressed. Any necessary tests, including any psychiatric testing, should be obtained. The examiner must reconcile all opinions of record, to include those from VA examination reports and those provided by VA psychiatric nurse, C.U., and VA staff psychiatrist, G.D. with the opinion provided. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis pursuant to DSM-IV and a diagnosis pursuant to DSM-5. Specifically state whether each criterion for a diagnosis of PTSD is met under each set of criteria. (b) If a diagnosis of PTSD is appropriate, comment upon the link between the current symptomatology and any in-service stressor reported by the Veteran and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's service including the reported assault in service. The examiner should specifically make a finding as to whether there are factors to support the finding that the reported personal assault in service occurred, and should comment upon any records indicating any change in behavior or performance subsequent to the assault alleged by the Veteran to have occurred during service and offer an opinion as to the clinical significance, if any, of any evidenced changes. (c) If any diagnosis other than PTSD is appropriate, the examiner should specifically state for each diagnosis whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's active service, or the reported assault in service, or that any psychosis developed within one year of the Veteran's discharge from active service. The examiner must consider the Veteran's statements regarding continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 3. Forward the entire claims file to the examiner who prepared the April 2015 VA headaches examination for a supplemental opinion. If the prior examiner is unavailable, or is unable to provide the requested supplemental opinion without examining the Veteran, schedule the Veteran for a VA headache examination, by a medical doctor, to obtain the information requested. The examiner must review the claims file and that review must be noted in the report. The examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. (a) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed headache disability is proximately due to or caused by any psychiatric disability. (b) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's has a headache disability that is aggravated (permanently increased in severity beyond the natural progress of the condition) by any psychiatric disability. (c) If it is determined that there is another likely etiology for any headache disability found, that should be stated. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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) (2015).