Citation Nr: 1623748 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 10-08 355A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include depression, anxiety, and adjustment disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty for training from June 2000 to November 2000, and on active duty from January 2002 to March 2002 and from February 2003 to August 2004. The Veteran had service in Southwest Asia. This case comes before the Board of Veterans' Appeals (the Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Thus, any future consideration of this case should take into account the existence of these electronic records. The Board remanded the Veteran's claim in March 2012 and November 2014 for further development. Unfortunately the remand directives were not substantially complied with, and additional development is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its November 2014 remand, the Board instructed the AOJ to afford the Veteran a VA psychiatric examination to determine the nature of any current acquired psychiatric disorder other than PTSD, and to opine whether any diagnosed disorders were related to service or caused or aggravated by the Veteran's service-connected PTSD. The Veteran was afforded a VA psychiatric examination in February 2015. The examiner stated that the Veteran's only psychiatric disorder was PTSD, explaining that the Veteran did not meet the diagnostic criteria for, or endorse symptoms consistent with, a diagnosis other than PTSD under the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM)-5. However, additional clarification is required for the following reasons. First, although VA has implemented DSM 5, the Secretary of VA has determined DSM-5 does not apply to claims certified to the Board prior to August 4, 2014, even if such claims were subsequently remanded to the AOJ. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the AOJ certified the Veteran's appeal to the Board before August 4, 2014, this claim is governed by DSM-IV. Second, evidence associated with the claims file subsequent to the November 2014 remand shows that during the appeal period, the Veteran had diagnoses of major depressive disorder, anxiety disorder not otherwise specified, and insomnia. See November 2014 Primary Care Provider New Patient Physical; see also March 2015 letter from Dr. G. F. The February 2015 VA examiner did not address these records or the diagnoses contained therein. Nor did the examiner state whether the Veteran's PTSD diagnosis encompassed the symptoms of the other diagnosed conditions. Lastly, even if the other diagnosed psychiatric disorders resolved prior to the February 2015 VA examination, they nonetheless suffice for the purposes of a current disability and thus require an opinion on their 'relationship to service or the Veteran's service-connected PTSD. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that the requirement of current disability is satisfied when the disability is shown at any point during the pendency of the claim, even if the disability subsequently resolves). Thus, additional medical clarification is required. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran provide or authorize the release of any medical records related to her acquired psychiatric disorders that are not already of record. After obtaining such authorization, request copies of any outstanding records identified by the Veteran as well as any outstanding VA treatment records. If VA is unable to obtain the identified records, the Veteran should be accorded the opportunity to furnish such records directly to VA. 2. Thereafter, forward the Veteran's claims file to the examiner who rendered the February 2015 opinion (or a suitable substitute if this individual is unavailable) for an addendum opinion regarding the Veteran's psychiatric claim. The clinician is requested again to review the claims folder, to include this remand. Unless the clinician finds that a new examination is required, the Veteran need not be examined again. Following a review of the record, the clinician should provide an opinion on the following with respect to any acquired psychiatric disorder diagnosed from October 2006 to present: a. State whether the disorder is part and parcel of the Veteran's service-connected PTSD, or a separate and distinct condition. *For the purposes of this opinion, the clinician should use the criteria set forth in the DSM IV.* b. State whether it is at least as likely as not (a probability of 50 percent or greater) that the disorder is causally related to the Veteran's active service. c. State whether it is at least as likely as not (a probability of 50 percent or greater) that the disorder is caused by the Veteran's service-connected PTSD. d. State whether it is at least as likely as not (a probability of 50 percent or greater) that the disorder is aggravated (i.e., chronically worsened) by the Veteran's service-connected PTSD. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's acquired psychiatric disorder(s) found prior to aggravation, and (2) the increased manifestations that, in the examiner's opinion, are proximately due to the service-connected PTSD. Any opinions offered should be accompanied by supporting rationales. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. 3. Review the examination report to ensure that it complies with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 4. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned to the Board, if otherwise in order. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS 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).