Citation Nr: 1615825 Decision Date: 04/19/16 Archive Date: 04/26/16 DOCKET NO. 10-04 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty with the Army from April 1976 to April 1979. He also served with the Army National Guard from August 1979 to October 1993, with a verified period of active duty for special work (ADSW) from July 5, 1988 to March 28, 1989 and various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter initially came before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In September 2011 and April 2013, the Board remanded this case for further development. Among other things, the September 2011 remand directed the Veteran be accorded an examination to address the nature and etiology of his claimed psychiatric disorder. He was subsequently accorded a VA examination in October 2011; but the Board found this examination to be inadequate and remanded the case in April 2013 for a new examination. He was accorded a new examination in November 2013. However, as detailed below, the Board must find that this examination is also inadequate and not in accord with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Due to the aforementioned deficiency, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. In this case, the Veteran contends that he has a current psychiatric disorder due to stressors that he experienced while serving in the National Guard. For example, he has reported that while he was stationed at Fort Chaffee, Arkansas he rescued an injured service member who was involved in a motor vehicle accident. In addition, he was reportedly in fear of being deployed to the Persian Gulf during Operation Desert Storm while he relieved service members who had already been deployed and reportedly witnessed a fellow service member sustain injuries after falling off a moving vehicle while he was stationed at Fort Irving, California. The Board has previously noted that the first of the purported stressors noted in the preceding paragraph is confirmed by the other evidence of record. In pertinent part, a "Recommendation for Award" form (DA Form 638) dated in June 1989 confirms that the Veteran assisted a fellow service member who had been injured in a motor vehicle accident that month. The Board has further noted in the prior remands that the Veteran's service treatment records reflect the Veteran indicated on a Report of Medical History completed in conjunction with his March 1976 enlistment examination that he had a history of "frequent trouble sleeping" and "nervous trouble of any sort." However, there was no other evidence of any pre-existing psychiatric disability at the time the Veteran entered active service in April 1976, and his March 1976 entrance examination was normal. Thus, the Board found that the evidence was not clear and unmistakable that any psychiatric disability existed prior to his active service in April 1976 and he is therefore presumed to have been sound at entry. See 38 U.S.C.A. § 1111. The record reflects the Veteran also indicated history of "frequent trouble sleeping," "depression or excessive worry," and "nervous trouble of any sort" on a Report of Medical History completed in conjunction with his February 1979 separation examination. Similarly, he reported a history of "depression or excessive worry" and "nervous trouble of any sort" associated with bill paying on a May 1983 Report of Medical History for purposes of retention in the National Guard, and a history of "depression or excessive worry" and "nervous trouble of any sort" on a January 1992 Report of Medical History for purposes of retention in the National Guard. As noted in the Introduction, the Board previously remanded this case in September 2011 to address the nature and etiology of the Veteran's psychiatric disorder, and that he was accorded an examination in October 2011. However, the VA examiner concluded the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM and that he did not have any current mental disorder that conformed to that criteria. Therefore, no opinion was provided as to the etiology of any psychiatric disability. The Board determined in the April 2013 remand that the October 2011 VA examination was inadequate for resolution of this case. Among other things, the Board noted that medical treatment records included findings of depression and PTSD, to include a January 2012 VA treatment record completed subsequent to October 2011 VA examination. Therefore, the Board remanded the case for a new examination to address the etiology of any current psychiatric disability; and specifically stated it was to include any psychiatric disability diagnosed since April 2008. The subsequent November 2013 VA examination did acknowledge the Veteran's stressor regarding rescuing a fellow service member injury in a motor vehicle accident. However, the VA examiner opined that it was less likely than not that the Veteran meets criteria for PTSD because he did not report symptoms consistent with a diagnosis of PTSD. No other psychiatric disorder appears to have been addressed, to include the prior findings of depression despite the remand directives to this effect. Further, it is noted that other evidence of record, to include VA treatment records dated in 2013, continue to show findings of depression. Consequently, the Board must conclude that this November 2013 examination is not adequate for resolution of this case. The United States Court of Appeals for Veterans Claims (Court) has held that a veteran, as a matter of law, has the right to compliance with the remand orders; and that VA has a concomitant duty to ensure compliance with the terms of the remand." Stegall, 11 Vet. App. at 271. In addition, the Court has held that 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 (2007). Therefore, even though it regrets further delay, the Board concludes that it must once again remand this case in order to obtain clarification from the November 2013 VA examiner regarding the etiology of the Veteran's current psychiatric disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.); see also 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. Request the names and addresses of all medical care providers who have treated the Veteran for his psychiatric disorder since December 2013. Even if the Veteran does not respond, determine if there are any VA medical records for the pertinent period. After securing any necessary release, obtain those records not on file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran's claims folder should be made available to the November 2013 VA examiner for review and clarification of the opinion(s) expressed therein. Specifically, the examiner should answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the current psychiatric disability (i.e., any disability diagnosed since April 2008 including depression and PTSD) had its clinical onset during the Veteran's periods of active duty from April 1976 to April 1979 or from July 5, 1988 to March 28, 1989, had its clinical onset during any period of ACDUTRA or INACDUTRA, is related to any reported stressor in service, was permanently aggravated beyond its natural progression during a period of ACDUTRA or INACDUTRA, or is otherwise the result of a disease or injury incurred during a period of active duty or ACDUTRA or an injury incurred during a period of INACDUTRA? (b) If the Veteran meets the criteria for a diagnosis of PTSD, what are the stressors that support the diagnosis? In formulating the above opinions, the examiner should specifically acknowledge and comment on all psychiatric disabilities diagnosed since April 2008 (including depression and PTSD), the Veteran's reported stressors in service (including rescuing an injured service member who was involved in a motor vehicle accident, witnessing a fellow service member sustain injuries after falling off a moving vehicle, and being in fear of being deployed to the Persian Gulf during Operation Desert Storm while relieving service members who had already been deployed), and his reports of a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble on the March 1976, February 1979, May 1983, and January 1992 reports of medical history. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. If the original examiner is not available, then the requested medical opinion(s) should be obtained from another appropriately qualified clinician. If a new examination is deemed warranted, then one should be provided. 4. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in January 2014, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).