Citation Nr: 1604644 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 14-04 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. This matter was remanded by the Board in June 2015. In March 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD and major depressive disorder, as a result of stressors during active duty service. Pursuant to the Board's June 2015 remand, the Veteran most recently underwent VA examination in connection with his claim in August 2015. The Board's remand order directed the examiner to consider all possible stressors described by the Veteran, to provide all diagnoses, and to comment on all psychiatric diagnoses of record during the pendency of the appeal. However, the examiner reported that the Veteran was uncooperative upon examination and, as a result, did not provide any diagnosis or etiological opinion. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Id. However, the Veteran also has a duty to assist in the development of his own claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). While the Veteran did not cooperate upon examination, the Board is unable to make a decision on the evidence of record. Accordingly, the development specified in the Board's prior remand must be conducted prior to adjudication. As such, the Board finds remand is warranted in order to obtain an additional examination and opinion. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Upon examination, the examiner must specifically address all of the Veteran's purported stressors, particularly those related to a fear of hostile military or terrorist activity, including the Veteran's assertion that his ship engaged in fire with small hostile boats on a regular basis and his fear that, given the ammunition cargo his ship carried, such fire could result in the destruction of the ship. If the examiner is unable to provide a diagnosis or opinion based on a face-to-face examination, the examiner should, to the extent possible, provide an opinion based on the record or indicate why providing such an opinion would be impossible. Furthermore, prior to being scheduled for a new VA examination, the Veteran should be reminded that "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 193. The Veteran should then be scheduled for a new VA examination, where the Veteran is encouraged to participate fully and openly. Additionally, with respect to the examination, the Board notes that, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in March 2014 and, therefore, this claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, due process requires that the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder must also be considered using the DSM-IV criteria. Furthermore, as the Veteran receives continuous treatment through VA, the Board finds the RO should obtain all VA treatment records dated from July 2015 to the present. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record VA treatment records for the Veteran dated from July 2015 to the present. All actions to obtain the requested records should be documented fully in the claims file. If any records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be noted in the claims file. 2. Prior to being scheduled for a new VA examination, the Veteran should be informed that it is his responsibility to report for examination and to cooperate in the development of the claim, and that "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is encouraged to cooperate and to accurately depict the severity of any psychiatric disability during VA examination. 3. Then, schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to determine the current nature and etiology of any acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, VA treatment records and examinations reports, and with consideration of the Veteran's lay statements, the examiner should provide all diagnoses and an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current acquired psychiatric disorder began in service, was caused by service, or is otherwise related to service. In this respect, the examiner should comment on all diagnoses of record during the pendency of the appeal, including any psychiatric diagnoses present or noted in the claims file, specifically including PTSD and major depressive disorder. The examiner should also address each of the Veteran's alleged stressors, and consider both the DSM-IV and DSM-5 diagnostic criteria. If PTSD is diagnosed, the examiner must indicate the specific stressor or stressors that led to the PTSD and indicate whether such stressors are related to the Veteran's fear of hostile military or terrorist activity. If the examiner is unable to formulate an opinion based on a face-to-face examination of the Veteran, the examiner should, to the extent possible, provide an opinion based on the record or indicate why providing such an opinion would be impossible. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 4. After all development has been completed, re-adjudicate the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. If the benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).