Citation Nr: 1605761 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 14-24 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include Post-Traumatic Stress Disorder (PTSD). REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Dominic Jones, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to October 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disorder. The record raises several theories of entitlement. First, the Veteran claims entitlement to service connection for PTSD on the basis of military sexual trauma (MST), although the MST is not documented in any of the Veteran's service records. There is also an indication in the record that the Veteran has a diagnosis of a depressive disorder that may be related to her service-connected migraine headaches or directly to military service. Finally, there is an indication that the Veteran has PTSD related to a stressor that occurred prior to her entering the military. The Veteran has received at least two VA examination for mental health. The 2012 and 2014 VA examination reports reflect the Veteran was diagnosed with PTSD and a depressive disorder. For the reasons detailed below, the Board finds that the medical opinions contained in the 2012 and 2014 VA examination reports are flawed and are legally inadequate. Initially the Board notes that the same examiner conducted the 2012 and 2014 examinations of the Veteran. In both cases, the examiner alleged it would be mere speculation to indicate whether the Veteran's records support the occurrence of MST. Additionally, in the February 2012 VA examination report, the examiner did not provide an opinion regarding the etiology of the Veteran's diagnosed depressive disorder. The examiner also found that the Veteran's PTSD was related to an experience the Veteran had as a child, prior to military service. In the 2014 VA examination report, the examiner again alleged she could not provide an opinion on whether the MST alleged by the Veteran actually occurred without resorting to speculation. She also indicated she could not opine as to the likelihood of the service-connected migraines causing or aggravating the diagnosed depressive disorder without resorting to speculation. She again indicated that the Veteran's PTSD was related to a childhood stressor that occurred prior to the Veteran entering the military. Finally, she failed to provide any opinion on the likelihood that the Veteran's depressive disorder is directly related to her military service. For these reasons, the Board finds that a new examination is required. Such examination should be conducted by a different medical professional than the individual who conducted the 2012 and 2014 VA examinations for mental health disorders. In light of the Board's remand, any pertinent unassociated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's relevant VA treatment records dated from May 2014. 2. Schedule the Veteran for a VA examination by an appropriate professional. It is imperative that such examination not be conducted by the VA examiner who conducted the PTSD examinations for the Veteran in 2012 and 2014. The entire claims file should be reviewed by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed acquired psychiatric disorder, to include PTSD and depressive disorder, had its onset during service or is otherwise related to service. If PTSD is diagnosed, the examiner must identify the stressor, or stressors, upon which the diagnosis of PTSD is made. If the diagnosis of PTSD is found to be related to the childhood stressor described in the 2012 and 2014 VA examination reports, the examiner must determine the year when the Veteran's PTSD based on the childhood stressor commenced. In particular, the examiner must determine if the Veteran's PSTD based on the childhood stressor commenced prior to the Veteran's military service. If the diagnosed depressive disorder is not found to be directly related to the Veteran's military service, the examiner should also opine as to whether it is at least as likely as not that the Veteran's service-connected migraines caused or aggravated her depressive disorder. In responding to this question, the examiner must consider the February 2014 medical note which indicates major depression due to service-connected migraines. If the examiner finds that the service-connected migraines aggravated the Veteran's depressive disorder, the examiner must attempt to establish a baseline level of severity of the depressive disorder prior to aggravation by the service-connected migraines. 3. Finally, after the development requested has been completed, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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). _________________________________________________ M. HYLAND 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).