Citation Nr: 1625698 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 12-20 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety, depression, and a mood disorder. REPRESENTATION Appellant represented by: James G. Fausone, Esq. ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1968 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO) rating decision in August 2011. The August 2011 rating decision granted service connection for bilateral hearing loss with an noncompensable evaluation, effective February 11, 2011, denied service connection for (1) posttraumatic stress disorder (PTSD); (2) an unspecified mood disorder; (3) anxiety; (4) depression; (5) tinnitus; (6) a left leg disability; (7) a cervical spine disability, and (8) declined to reopen a claim for service connection for a muscle strain of the right scapula based on a finding that new and material evidence had not been received. The Board acknowledges the ruling in Clemons v. Shinseki, 28 Vet. App 1 (2009), which clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, although a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Because the Veteran's claims for an unspecified mood disorder, anxiety, and depression all encompass psychiatric disorders other than PTSD, the Board has recharacterized the issue as indicated above. A March 2014 Board decision, by a VLJ other than the undersigned, granted service connection for tinnitus, denied service connection for (1) PTSD; (2) a left leg disability; (3) a cervical spine disability; and (4) declined to reopen a claim for service connection for a muscle strain of the right scapula based on finding that new and material evidence had not been received, and remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD for additional development. The only issue currently before the Board is the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. The case is now assigned to the undersigned. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in developing evidence in support of his claim. Because there has not been substantial compliance with the instructions in the Board's previous remand, a remand to ensure compliance is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). In the December 2014 remand, the Board requested that the Veteran be afforded a VA examination to determine the cause of the Veteran's psychiatric disorders other than PTSD, to specifically address the cause of a mood disorder diagnosed during a March 2011 VA PTSD examination. On June 2015 VA examination, the examiner did not address the Veteran's then-diagnosed mood disorder. The June 2015 examiner diagnosed a depressive disorder but opined that it was unrelated to service because the Veteran "ma[de] no mention of his military service or service connected conditions in the context of contributing factors in his depressive symptoms (which appear quite mild)" and attributed his depression to other causes. The Board finds this opinion inadequate for several reasons. First, the opinion appears to be based, at least in part, on the fact that the symptoms were "quite mild," which is unrelated to the question of whether a condition is connected to service. Second, the only other rationale provided indicates that the examiner appears to have drawn his conclusions based on the fact that the Veteran did not mention his service when discussing his depressive symptoms. In other words, the examiner appears to have based his professional medical opinion on the Veteran's lay assessment of the cause of his depressive disorder. However, the underlying cause (or mix of causes) is a complex medical question that requires medical or psychiatric expertise and the Veteran, as a lay person, has not indicated that he has the training or expertise to competently opine as to the cause of the disability. 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Because the June 2015 opinion is inadequate, another examination to obtain an adequate opinion is necessary. Finally, it is not clear from the record whether all the Veteran's psychiatric and mental health treatment records have been obtained and, on remand, the Board should ensure that this development has been completed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all providers of evaluations and treatment he has received for psychiatric disorders since separation from service, and to provide the releases necessary for VA to obtain the records of any such private evaluations and/or treatment. The AOJ should obtain for the record complete clinical records of the evaluations and treatment from all providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If private records sought are not received pursuant to VA's request, the AOJ should so advise the Veteran, and also advise him that ultimately it is his responsibility to ensure that private treatment records are received. 2. Thereafter, the AOJ should arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist to determine the nature and likely cause of any diagnosed psychiatric disorder, to specifically include the currently-identified mood disorder and depressive disorder. The examiner should obtain a complete history from the Veteran, review the entire VA record (to specifically include this remand, his STRs, and his postservice treatment records, if any are received), and provide opinions that respond to the following: a. Please identify (by diagnosis) each psychiatric disability found, specifying (regarding each) whether it is an acquired disorder or a personality or developmental disorder. b. Please identify the likely cause for each acquired psychiatric disability diagnosed, to include the currently-identified mood disorder and depressive disorder? Specifically, is it at least as likely as not (a 50% or better probability) that such disability is related to [was first manifested during, or is in any other way related to] the Veteran's service? If a psychiatric disability is determined to be unrelated to the Veteran's service, the examiner should identify the more likely cause. The examiner must explain the rationale and reasoning for all opinions and conclusions provided, with reference to supporting clinical data, as indicated. 3. The AOJ should then review the entire record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The appellant 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). _________________________________________________ VICTORIA MOSHIASHWILI 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).