Citation Nr: 1608625 Decision Date: 03/03/16 Archive Date: 03/09/16 DOCKET NO. 05-02 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Stepanick, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2004 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2007, the Veteran and his wife testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In a September 2007 decision, the Board, in pertinent part, reopened the Veteran's claim for service connection for depression and remanded that issue to the RO for further development. In a July 2010 decision, the Board denied, among other claims, service connection for a psychiatric disorder, to include depression. The Veteran appealed the Board's July 2010 decision to the U. S. Court of Appeals for Veterans Claims (Court). In a February 2012 single-judge memorandum decision, the Court vacated the portion of the Board's decision denying service connection for a psychiatric disorder, and remanded it to the Board for further development and readjudication in compliance with directives specified. The Court entered judgment in March 2012. In September 2012, the Board remanded the claim for service connection for a psychiatric disorder, to include depression, for further action consistent with the Court's February 2012 decision. The Board notes that the Veteran has also filed a claim for PTSD, which was initially denied in a March 2012 rating decision. The RO again addressed a claim for PTSD in a June 2014 rating decision, characterizing it as a claim that had been finally denied and declining to reopen it. Then, in a September 2014 supplemental statement of the case issued in connection with the instant appeal, the RO reopened the PTSD claim and adjudicated it as part of the claim for service connection for a psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, in July 2012 correspondence submitted to VA, the Veteran included statements that can be reasonably construed as disagreement with the March 2012 initial denial of, and a desire for appellate review of, a claim for service connection for PTSD. See 38 C.F.R. § 20.201. No statement of the case was issued in response to that correspondence. As such, an appeal pertaining to service connection for PTSD has been pending since the March 2012 rating decision. See Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (finding that a rating decision did not become final because no SOC was issued after a NOD was timely submitted). Furthermore, in response to the September 2014 supplemental statement of the case that incorporated the prior PTSD claim, the Veteran submitted correspondence stating that he wished to appeal the denial of his claims for both depression and PTSD. Based on the foregoing, the Board finds that a claim for service connection for PTSD is properly before it as part of the claim for service connection for a psychiatric condition, and that new and material evidence is not required before it may address that aspect of the Veteran's psychiatric claim. The issue on the title page has been amended accordingly. Finally, in January 2015 and on various occasions thereafter, the Veteran confirmed that he wished to revoke his most recent power of attorney, executed in favor of a private attorney, and proceed pro se. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, it finds that further development is necessary prior to adjudication of the issue on appeal. The Board remanded this claim in September 2012 in part to obtain an addendum medical opinion from the VA examiner who performed the Veteran's January 2010 psychiatric compensation examination. As that examiner was apparently unavailable, the Veteran was afforded a new examination in August 2014 in accordance with the Board's remand instructions. Following examination of the Veteran, the VA examiner diagnosed the Veteran with major depressive disorder, anxiety disorder not otherwise specified, and alcohol abuse in remission. She stated that she could not provide the requested etiological opinion, however, because she had not been provided with the Veteran's claims file for review in connection with the examination. The examiner also noted that she did not complete a PTSD disability benefits questionnaire (DBQ) because the Veteran denied a history of trauma that would warrant a diagnosis of PTSD. Regarding the Veteran's relevant mental health history, she stated that the Veteran reported first receiving mental health treatment in 1976, when he was hospitalized for several weeks due to anxiety and depression, and that he was hospitalized one more time later that year. No additional details surrounding those hospitalizations were reported. The examiner also noted that the Veteran sought and was denied mental health treatment at a VA facility in 1983, and that he next received mental health treatment in 2003 at a private outpatient clinic. Later that month, the August 2014 examiner issued an addendum opinion. She reported that a compensation and pension staff member had provided her with hard copies of "some of" the Veteran's records that were available in his electronic claims file, and opined that his current mental health symptoms were a continuation of his in-service symptoms, noting that he had depression in the military and a related hospitalization. On September 15, 2014, the examiner provided another addendum opinion, reporting that she had been asked to clarify the opinion she had provided in August. At that time, she stated that she had reviewed hard copies of "information from the claims file," including an opinion by the Veteran's VA psychiatrist, because she had not been granted access to the electronic claims file. She reiterated her positive etiological opinion, stating it was at least as likely as not that the Veteran's current mental health symptoms were a continuation of the mental health symptoms he presented within the military. She explained that the Veteran experienced depression in service and continued to have mental health symptoms at present. The August 2014 examiner issued a third addendum opinion on September 23, 2014. She reported that a particular Decision Review Officer had provided her with additional records and a letter. The examiner stated that she had reviewed the 2010 VA examination report, records from another unnamed doctor, primary care records, mental health treatment records, and service treatment records. She opined that "it appears less likely than not that the Veteran's present psychiatric symptoms are related to the mental health symptoms that he experienced in the military." She acknowledged the Veteran's mental health issues, related to family and social issues, in service, but noted that he did not have any additional mental health treatment for a number of years. She also noted that more recent records suggested the Veteran's current depression had its onset in 2003. The examiner acknowledged that the Veteran had told her he tried to obtain mental health treatment in 1983, but stated that "even so, it appears again less likely than not that the mental health issues . . . [he] had in the military are unrelated to the mental health symptoms that he is experiencing at the present time with an onset of more recent symptoms in 2003." No additional explanation was provided. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, an examination that provides an etiology opinion without a rationale is inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Here, it is unclear whether any of the 2014 examiner's addendum opinions were based upon a review of all of the relevant medical evidence of record. Additionally, the examiner did not point to the specific evidence that led her to issue a final, negative opinion when she had already acknowledged the Veteran's pattern of post-service treatment history prior to issuing two positive opinions. Furthermore, the examiner did not explain why she found the Veteran's in-service depression to be unrelated to his current symptoms, which she stated began in 2003, in spite of accepting his report that he had sought and was denied psychiatric treatment in 1983. Finally, the Veteran has, since 2012, asserted that he has PTSD as a result of the in-service incidents to which he also relates his current depression, and has repeatedly sought a PTSD evaluation. Although the 2014 examiner explained why she did not complete a PTSD DBQ, it is unclear whether she was aware of the specific in-service incidents to which the Veteran relates that claimed condition when she determined that completion of the DBQ was not warranted. In short, in light of the 2014 examiner's apparently incomplete review of the relevant medical records in connection with the examination and her conflicting addendum opinions with no concrete explanation for the changes in her opinion, the Board finds the examination and opinions inadequate. Based on the foregoing considerations, this matter must be remanded to afford the Veteran a new VA psychiatric examination and opinion. Updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding relevant VA treatment notes dating from September 2014 to the present. 2. Then, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his claimed psychiatric disorder(s), to include depression and PTSD. If possible, the examination should be scheduled with a VA psychologist or psychiatrist other than the examiner who conducted the August 2014 examination. The claims file must be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner should then respond to the following: (a) Please identify the Veteran's current psychiatric diagnoses. (b) For each current psychiatric diagnosis identified, is it at least as likely as not that the condition had its onset during service or is otherwise related to service, to include the events the Veteran has stated led to his April 1976 overdose? In issuing the opinion, the examiner should specifically comment on the evidence suggesting that the Veteran's wife informed him during service that she would kill herself or obtain an abortion if he returned to or remained in Turkey, the January 2012 and May 2012 medical opinions by Dr. M., a VA psychiatrist, and the Veteran's assertion that he initially sought, but was denied, mental health treatment in 1983. (c) If PTSD is diagnosed, please state upon which stressor(s) that diagnosis is based. The examiner must provide a complete medical rationale for all opinions and conclusions reached. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide a detailed explanation as to why such an opinion cannot be provided. 3. After completion of the above and any additional development deemed necessary, the AOJ should again review the record. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if in order. 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). _________________________________________________ C. CRAWFORD 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).