Citation Nr: 1621027 Decision Date: 05/24/16 Archive Date: 06/02/16 DOCKET NO. 10-49 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disability, claimed as depression, anxiety disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In an April 2014 decision, the Board denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD (along with an increased rating claim). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2015, the parties - the Veteran and the legal representative of the VA, the Office of the General Counsel - filed a Joint Motion for Partial Remand to vacate the Board's April 2014 unfavorable decision regarding the service connection matter and remand the case to the Board. The Court in a February 2015 Order granted the Joint Motion, and remanded the matter for readjudication consistent with the terms of the Joint Motion. In March 2015, the Board remanded the case to the RO for additional evidence. The case was thereafter returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the January 2015 Joint Motion, the parties agreed that the 2010 and 2012 VA examinations of record were inadequate for adjudication and that the Veteran should be afforded another VA examination, which would be based on consideration of his entire medical history, to determine whether he had a current psychiatric disorder including depressive disorder and PTSD that was related to active service. As a result, the Board remanded the case to the RO in March 2015, and the Veteran underwent a VA examination in April 2015. However, this examination is also deemed inadequate for adjudication, for the following reasons. The examination was conducted by a psychologist, and not a psychiatrist, as directed in the Board Remand. Evidently, the RO noticed this and in June 2015 it ordered a new examination, but for unknown reasons the examination request was later canceled. Also, the Board directed that the examiner offer an opinion with supporting rationale as to whether the Veteran had PTSD that met the DSM-IV criteria. Although the VA examiner stated that the Veteran did not meet the criteria under DSM-IV for a diagnosis of PTSD, the examination report included only the diagnostic criteria from the DSM-5 (i.e., criteria A-H). It is noted that effective August 4, 2014, VA implemented DSM-5, and the Secretary of VA determined that DSM-5 applies to claims certified to the Board, or pending before the Board or the Court, on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). In this case, the Veteran's claim was originally certified to the Board in June 2012. Therefore, DSM-5 does not apply in this case. Additionally, it is not clear whether the VA examiner provided an opinion with full rationale that was responsive to the specific etiologic questions asked in the remand, namely, (a) whether there were psychiatric symptoms of any level that were due to factors other than alcoholism, and (b) whether such symptoms may be attributed (partly or wholly) to either service or service-connected prostate cancer and erectile dysfunction. Rather, the examiner reasoned that the Veteran's current mild depressive symptoms were not related to service or to service-connected disability because his mental health treatment began only eight or nine years previously in connection with chronic alcoholism and that the Veteran did not mention his service-connected disabilities in the context of contributing factors in his depressive symptoms at the time of the examination. In light of the foregoing, the Veteran should be afforded VA examination in accordance with the previous remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand orders of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). Upon further consideration of the claim, the Board observes that in recent years the Veteran's alcohol dependence has been in full sustained remission. Historically, however, private records show that he had a private PTSD interview in March 2011, whereon he reported to have self-medicated with alcohol or marijuana when he experienced intrusive thoughts. The Veteran's wife, in a June 2010 statement, asserted that he drank more and more in the years after Vietnam when he refused to seek mental health assistance. While the Veteran has not expressly asserted a claim of service connection for alcoholism in connection with his psychiatric disability, it appears that there may be a correlation between his history of chronic alcoholism and his claimed psychiatric disability. VA examinations in 2010 and 2015 reflect a diagnosis of major depressive disorder secondary to severe alcohol dependence, but given the statements as to self-medicating with alcohol and its use/abuse since service, the question arises as to whether alcohol dependence was secondary to an underlying psychiatric disability. Therefore, the VA examiner should consider this possibility on re-examination of the Veteran. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain for association with the claims file all treatment records of the Veteran in relation to a mental disability from the VA Medical Center in Minneapolis, Minnesota since April 2015. 2. The RO should arrange for the Veteran to be scheduled for an examination with a VA psychiatrist in order to determine the nature and etiology of any psychiatric disability that may exist presently or during an earlier period of this appeal (i.e., since the filing of his claim in March 2009). The entire claims file, to include a complete copy of this remand, should be made available to and reviewed by the examiner. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether, since March 2009, the Veteran has/had PTSD that meets/met the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (as noted above, DSM-5 does not apply in this case), and, if so, whether it is at least as likely as not that the Veteran's PTSD is/was the result of any in-service claimed event. In so doing, the VA examiner should determine whether any claimed stressor is related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are/were related to the claimed stressor. If a diagnosis of PTSD is/was deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the symptomatology and the Veteran's claimed stressor(s). (For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.) If the Veteran is found to have a psychiatric diagnosis presently or during an earlier period of this appeal (i.e., since March 2009), the examiner is requested to render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any such diagnosed psychiatric disability had its onset in service or is otherwise etiologically related to his active service or to a service-connected disability. If the Veteran is found to have alcohol dependence presently or during an earlier period of this appeal (since March 2009), in light of the Veteran's report on private medical records (during a March 2011 PTSD interview) that he used to self-medicate with alcohol when he had intrusive thoughts, the examiner is requested to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that alcohol dependence was caused or aggravated (i.e., increased in severity beyond natural progression) by any other currently diagnosed psychiatric disability. In requesting this opinion, the Board is aware that the Veteran has experienced long-term alcoholism and that his recent sobriety appears to have improved his symptoms. The examiner is also asked: (a) whether there are psychiatric symptoms of any level that are due to factors other than his alcoholism, and (b) whether such symptoms may be attributable (in part or in whole) to either his active duty service or to his service-connected prostate cancer and erectile dysfunction. All opinions must be accompanied by an adequate reasons and bases. Such reasons and bases may include, but are not limited to, the presence of symptomatology in service, specifically cited medical literature, and past evidence in the record, especially prior VA examination reports. If the examiner is unable to provide the requested opinion without resorting to mere speculation, he/she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular questions. 3. After ensuring that the foregoing actions are completed, the RO should adjudicate the claim of service connection for a psychiatric disability. If the benefit sought on appeal is not granted, the Veteran should be furnished an appropriate supplemental statement of the case and afforded reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2015).