Citation Nr: 1605243 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 07-15 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include paranoid schizophrenia and major depressive disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from February 2005 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. This case was last before the Board in May 2015, when it was remanded for further development. The case has been returned to the Board for further appellate review at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the May 2015 remand, the Board first requested that the Veteran's Social Security Administration (SSA) records be obtained; those records have been associated with the claims file. The Board additionally requested that the Veteran be afforded a VA psychiatric examination and that the examiner provide a medical opinion addressing whether it was clear and unmistakable that the Veteran's psychiatric disorder both pre-existed service and was not aggravated by service; such examination was accomplished in October 2015 and the examiner rendered the following opinion: The Veteran's military service medical records do not support that the claimed acquired psychiatric disorder is at least as likely as not incurred in or caused during service. . . . The Veteran reports no mental health treatment until 2005; however, records note treatment in 2004 for depression. Furthermore, there is conflicting information within the Veteran's military records as there is documented evidence from the medical review board stating that the Veteran's mental health condition did not exist prior to military service. However, his discharge papers and other evidence (i.e., his rating decision denial) noted he was discharged after a medical review board noted his condition existed prior to military service and was not aggravated by military service. The Board finds that this opinion is completely unresponsive to the requested medical opinions in the last remand and therefore it is completely and utterly inadequate. A remand is necessary in order to obtain another VA examination with a psychiatrist other than the previous examiner, who may be more willing to address the requested opinions. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric disability examination with a psychiatrist other than the previous October 2015 examiner to determine whether any current psychiatric disorder is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found, including paranoid schizophrenia and/or major depressive disorder. The examiner should also specifically determine if the Veteran suffers from PTSD as required by 38 C.F.R. § 4.125. If the Veteran is shown to have PTSD, the examiner should specifically indicate the stressor(s) from which that diagnosis stems. The examiner should then address the following: (a) The examiner should state whether there is clear and unmistakable evidence that the Veteran's psychiatric disorder pre-existed military service. The examiner should specifically address the 2004 medical evidence from Baptist Medical Hospital records which indicate treatment for depression and also appear to indicate a diagnosis of schizophrenia at that time. The examiner should also address the January 2005 enlistment examination and the normal psychiatric examination at that time. The examiner should focus on whether the Veteran's schizophrenia existed prior to service, but resolved prior to his enlistment into military service, or whether such was merely ongoing but less severe. If the examiner finds that there was a pre-existing psychiatric disorder, the examiner should cite the specific clear and unmistakable evidence in the claims file on which this conclusion is based. (b) If the examiner finds that there is clear and unmistakable evidence that the Veteran's psychiatric disorder pre-existed service, the examiner should then opine as to whether there is clear and unmistakable evidence that the Veteran's psychiatric disorder was not aggravated (e.g., permanently worsened beyond the normal progression of that disease) by his military service. The examiner should focus first on whether there was an increase in symptomatology during military service, and if there was such an increase, then should address whether any increase in symptomatology during service was due to the normal progression of that disease. The examiner should specifically discuss the evidence in military service regarding the Veteran's psychiatric hospitalization therein, as well as the Physical Examination Board (PEB) findings and conclusions. Again, the clear and unmistakable evidence which leads the examiner to this conclusion should be specifically cited in his/her discussion. (c) If the examiner cannot find both clear and unmistakable evidence of pre-existence in (a) and non-aggravation in (b), the examiner should find as conclusive fact that the Veteran was psychiatrically sound on entrance into service in February 2005. The examiner should then opine whether the Veteran's psychiatric disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service, to include the psychiatric treatment and hospitalization noted therein The examiner should additionally address PEB and separation examinations in which the Veteran is shown to be psychiatrically abnormal, although he denies any psychiatric symptomatology in his report of medical history. The examiner should also address the Veteran's contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service. Particularly, the examiner must address the Veteran's statements regarding his symptomatology suffered in 2004 and then during service, the difference between which would be the presence of psychotic features during military service. In addressing the above opinions, the examiner should address the Veteran's contentions and lay statements throughout the appeal period. The examiner should additionally address all previous VA examination reports and the conclusions and findings therein. The examiner should also address any other pertinent evidence of record, as appropriate. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for a psychiatric disorder, to include paranoid schizophrenia. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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). _________________________________________________ MARJORIE A. AUER 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).