Citation Nr: 1620162 Decision Date: 05/18/16 Archive Date: 05/27/16 DOCKET NO. 14-21 621 ) 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 mental disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. He served in Vietnam from February 1970 to April 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which-in pertinent part, denied the claim. The rating decision also denied entitlement to service connection for post-operative residuals of a hernia and a skin disorder as due to herbicides; and, granted service connection for a bilateral hearing loss and assigned an initial noncompensable rating. The Veteran submitted a timely Notice of Disagreement (NOD) with those determinations. The RO later granted the hernia claim and issued a Statement of the Case (SOC) on the hearing loss initial rating and service connection denials. On his Substantive Appeal (VA Form 9), the Veteran specifically limited the perfection of his appeal to the PTSD claim. See 38 C.F.R. § 20.202 (2015). Hence, although the VA Form 8 reflects that the RO certified all of those issues to the Board, the Board declines to accept jurisdiction of them. Thus, they are not before the Board and will not be addressed in the action below; and, the issue of this appeal is as shown on the title page. See 38 C.F.R. § 20.200 (2015). The Board has also stated the issue as shown on the title page because The Veteran's claim for service connection for PTSD is deemed to encompass all psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2014, the Veteran appeared at a Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Veteran's pre-2014 VA outpatient records reflect diagnoses of PTSD, a VA C&P examiner conducted examinations of the Veteran in 2010 and 2014 and opined that the Veteran did not meet the DSM criteria for a diagnosis of PTSD. The examiner noted that while the Veteran reported some symptoms consistent with PTSD, overall he did not report symptoms consistent with the DSM criteria; and, the symptoms he did report were not connected to his claimed stressors. The examiner opined that, at most, the Veteran might possibly have an adjustment disorder. (11/23/2010 VBMS entry-VA Examination). At the 2014 examination, the same examiner opined that the Veteran did not meet the DSM criteria for a diagnosis of any mental disorder. The examiner noted that the Veteran reported nightmares and sleep disturbance, but the reported nightmares were not recurring, they were all different. (03/21/2014 VBMS entry-VA Examination, p. 6). The RO requested clarification from the examiner in light of the Veteran's diagnoses of record in his treatment records. The examiner noted the fact that the Veteran's outpatient records reflect changes in his diagnoses; that the outpatient entries did not reflect how the DSM was applied; and, that the examiner assessed the Veteran under both DSM IV and 5 but the Veteran did not meet the criteria of either for a diagnosis. (04/21/2014 VBMS entries-Request For Physical Examination, and VA Examination). A July 2014 VA Disability Benefits Questionnaire accomplished by a private psychologist, P.W.B., PhD, reflects diagnoses of PTSD, panic disorder with agoraphobia, and major depressive disorder, the latter two due to PTSD. Dr. B opined that the Veteran's diagnoses were linked to his Vietnam service. (07/15/2014 VBMS entry-VA Examination). VA mental health outpatient records dated in January 2016 note a diagnosis of anxiety disorder unspecified (with history of PTSD) and depressive disorder unspecified. (01/14/2016 VVA entry-CAPRI-1, p.4). The above noted medical evidence indicates a conflict among the medical experts. As such, the Board finds that additional medical input is needed in order to make an informed decision on the Veteran's appeal. There also is the matter of a number of negative depression screens in the outpatient records, as the VA examiner noted. The Board also notes a January 2011 outpatient entry that notes the Veteran's complaints of memory loss and at least two occasions where he found himself not being able to determine where he was. The entry notes an assessment of possible beginning of dementia. (01/28/2011 VBMS entry-Medical Treatment-Government Facility, p. 13). Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims file VA records generated since the April 2014 SOC. 2. After the above is complete, arrange a mental examination by an examiner other than the one who conducted the November 2011 and March 2014 examinations, and April 2014 addendum to the March 2014 examination. The Veteran's claims file or electronic records must be reviewed as part of the examination. The examiner is asked to address the following: Identify all current psychiatric diagnoses, including personality disorders. In identifying all current psychiatric diagnoses, please consider medical and lay evidence dated both prior to and since the filing of the August 2010 claim for service connection for a mental disorder, to include PTSD. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. Specifically, if there is no currently diagnosed PTSD, the examiner must reconcile this lack of diagnosis with a previous finding (e.g., an Axis I diagnosis of PTSD in a July 2014 private evaluation) showing this disability, and specifically provide an opinion as to whether it is as likely as not that the Veteran had PTSD at any time since August 2010 even if that disability has since resolved. Regarding PTSD, VA has found that the time, place, and circumstances of the Veteran's service in Vietnam are consistent with his reported fear for his life due to hostile enemy or terrorist activity. If PTSD is found, then the examiner is asked to opinion if this stressor is adequate to support a PTSD diagnosis. For each mental health disorder, to include anxiety and depressive disorders unspecified, which the examiner finds to have been present at any time since August 2010, the examiner is asked to provide an opinion as to whether there is at least a 50-percent probability or greater (at least as likely as not) that it is related to service. Provide a comprehensive explanation for all opinions provided. The explanation should include comment, as necessary, on disparate 2010 and 2014 VA examination reports and the July 2014 private evaluation findings and opinions. Any agreement or disagreement must be explained. 3. Thereafter, re-adjudicate the appeal considering all relevant evidence. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental SOC (SSOC). Then, if all is in order, return the case to the Board. 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). _________________________________________________ PAUL SORISIO 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).