Citation Nr: 1621341 Decision Date: 05/26/16 Archive Date: 06/08/16 DOCKET NO. 06-38 343 ) 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, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to head injury. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran had active duty service from October 1952 through May 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran has perfected a timely appeal of that decision. In May 2011, the Board identified the matter as being comprised of two separate issues characterized as: service connection for a cognitive disorder, NOS (claimed as memory loss) due to head injury, and, as service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as psychological condition) due to head injury. The Board granted service connection for a cognitive disorder, NOS, but remanded the issue of entitlement to service connection for a psychiatric disability for further development. In January 2013, the Board denied the Veteran's claim for service connection for a psychiatric disability. As basis for the denial, the Board concluded that the evidence of record did not show that the Veteran had a separate psychiatric disorder in addition to his service-connected cognitive disorder, NOS. The Veteran subsequently appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In an October 2013 Joint Motion for Remand, counsel for the Veteran and for the VA Secretary (the parties) argued that, despite evidence showing psychiatric diagnoses of depression in June 2005, anxiety disorder in September 2005, and dysthymia in March 2007, the Board failed to consider adequately whether the Veteran had a verifiable psychiatric condition at the time that his claim for benefits was filed in August 2005. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability element for service connection is met when a claimant has a disability at the time that a claim for VA disability compensation is filed, or, during the pendency of that claim, even where the disability in question resolves prior to the Secretary's adjudication). Also, the parties argued that the Board's determination that "diagnoses of depression, anxiety, and dysthymic disorder are isolated and not sustained by the other treatment records" and hence, "they do not provide persuasive evidence of a chronic psychiatric disability," was inadequate reasoning given the Veteran's documented complaints of depression and anxiety from 2005 through 2010. Toward that end, the parties noted that the Board failed to provide adequate explanation as to why the psychiatric diagnoses in June 2005, September 2005, and May 2007 are "isolated." The Joint Motion for Remand was granted by the Court in a November 2013 order. This matter was remanded subsequently by the Board in April 2014, March 2015, and November 2015 for additional development. In the most recent November 2015 remand, the Board determined that the opinions and rationale expressed in a June 2014 VA mental health examination were deficient. Accordingly, the Board directed that the claims file be forwarded to the same VA examiner who conducted the June 2014 examination and that she provide opinions addressing the noted deficiencies. The Agency of Original Jurisdiction (AOJ) has undertaken efforts to comply with the Board's remand instructions and the matter now returns to the Board. For reasons discussed more fully below, however, the Board finds that such efforts are not adequate. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a June 2014 VA examination, then VA examiner opined that the "Veteran does not warrant an additional psychiatric disorder besides his neurocognitive disorder." As mentioned above, however, the Board determined in the November 2015 remand that the VA examiner's stated opinion and rationale is deficient because they do not acknowledge or address information in the record that would appear to contradict the stated opinion and rationale. In that regard, the Board noted in the remand that the VA examiner fails to note a favorable February 2014 private opinion from Dr. E.J.S., and also, fails to note that the Veteran has been maintained on a lengthy course of anti-depressant medications. Parenthetically, the Board observes that records for additional VA treatment received by the Veteran since the November 2015 remand documents that the Veteran continues to take Celexa, an anti-depressant. In the absence of the examiner's discussion concerning the validity of Dr. E.J.S.'s findings and conclusions and what significance, if any, the examiner attributes to the fact that the Veteran has been maintained on a lengthy course of anti-depressant medications, it is unclear as to whether the examiner has considered that evidence and if so the extent to which that evidence impacts her opinion. Consistent with the Board's remand, the AOJ requested that the same VA examiner who performed the June 2014 examination review the claims file again and provide an addendum opinion that addresses the foregoing deficiencies. The examiner provided a December 2015 addendum; however, simply re-printed her June 2014 opinion and rationale. In doing so, she once again fails to address directly the findings and opinions expressed by Dr. E.J.S. or the Veteran's course of anti-depressant medication. The examiner's December 2015 addendum is non-responsive to the Board's remand and is again deficient. VA should arrange the Veteran to undergo a new VA mental health examination, to be performed by a different VA examiner than the one who conducted the June 2014 examination. The examiner should determine whether the Veteran has a mental health disorder that is distinct from his traumatic brain injury, and in stating that opinion, should provide a detailed and thorough rationale that includes a discussion of the findings and evidence that supports the examiner's stated opinion. 38 C.F.R. § 3.159(c)(4). Prior to arranging the examination ordered above, the Veteran should be asked to identify any private and/or VA treatment providers who have rendered any mental health treatment since November 2015. VA must then make efforts to obtain the records for any treatment identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should send a letter to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of entitlement to service connection for an acquired psychiatric disorder, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to service-connected head injury. The letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a new VA examination of his psychiatric disorder. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided mental health treatment since November 2015. 2. Obtain the records for treatment identified by the Veteran. Records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the foregoing development has been performed to the extent possible, the Veteran should be afforded a VA mental health examination, to be performed by a different VA examiner than the one who performed the previous June 2014 examination, to determine the nature and etiology of his claimed mental health disorder. The claims file should be made available to the examiner prior to the examination, and the examiner should be asked to review the entire claims file in conjunction with the examination. For purposes of the examination, the examiner will note that the Veteran was given a Medical Evaluation Board diagnosis of a "psychophysiological musculo-skeletal disorder with moderate industrial impairment" prior to being separated from service. All tests and studies deemed necessary by the examiner must be performed. The examiner should provide opinions as to the following questions: (a) has the Veteran had, at any time since August 2005, a diagnosable mental health disorder that is distinct from his service-connected cognitive disorder? If so, is it at least as likely as not (at least a 50 percent probability) that the mental health disorder is related to his active duty service, to include in- service head trauma? (b) if it is your opinion that the Veteran has not had a distinct mental health disorder since August 2005, why do you disagree with the diagnoses shown in the VA treatment records since 2005 and in Dr. E.J.S.'s February 2014 opinion? (c) what significance do you attach to the fact that the Veteran has been maintained on anti-depressant medications since 2005? Does that fact affect your opinion as to whether the Veteran has had a mental health disorder that is distinct from his service- connected cognitive disorder? The examiner must provide a complete rationale for all expressed opinions, which includes citation to any relevant facts, evidence, or medical principles. If the examiner is unable to provide any of the requested opinions without resorting to speculation, he or she should indicate this expressly and explain what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. The examiner's opinions and rationale should be expressed in a typewritten and legible report. 4. After completion of the above development, the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to service-connected head injury should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). _________________________________________________ MICHAEL LANE 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).