Citation Nr: 1640734 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 08-29 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 6, 1980 to December 4, 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 rating decision if the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction of the claims file has subsequently been transferred to the RO in Cleveland, Ohio. This matter was previously before the Board in October 2014, whereupon it remanded the case to the RO for further development of the record. Following an April 2016 supplemental statement of the case which continued the denial of the service connection claim, the case was returned to the Board for its adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, before the Board makes a determination as to the claims on appeal, further development of the record is necessary. Specifically, the Veteran must be afforded a new VA psychiatric examination in order to determine an appropriate diagnosis for the Veteran's acquired psychiatric disorder and then provide an opinion as to whether his acquired psychiatric disorder manifested during service or is otherwise related to service, with due consideration given to evidence not discussed during the previous VA examination. The Veteran was last afforded a VA examination in October 2012, pursuant to a Joint Motion for Remand issued by the Court of Appeals for Veterans Claims. Prior to this examination, the Veteran had not been afforded a VA psychiatric examination to evaluate the nature and etiology of his acquired psychiatric disorder. During the examination, the Veteran reported that he began experiencing symptoms of depression after he was discharged but that he was in denial until he first sought treatment three or four years after service at the urging of his mother. He stated that he started hearing the voices of his deceased mother and brother in the mid 1990s but that he rarely heard those voices anymore. With regards to the triggering event for his depression, the Veteran recounted his traumatic experience during a gas mask training exercise in service, after which he stated that he couldn't sleep and was referred to an army psychiatrist. According to the Veteran, the psychiatrist merely wrote down what he said and then recommended that he be discharged. As for the Veteran's symptoms at the time, the Veteran stated that he regularly had nightmares about his gas mask training and also had frequent panic attacks. The examiner noted that the Veteran was previously diagnosed with major depressive disorder with psychotic features, moderate, recurrent. After a battery of psychiatric tests, the examiner found that the Veteran over-reported his symptoms, and concluded that although the Veteran had bona-fide symptoms of depression, the severity of those symptoms could not be determined due to the amount of symptom magnification. This also meant that the examiner could not provide a Global Assessment of Functioning (GAF) score to approximate the degree of functional impairment stemming from the acquired psychiatric disorder. The Board highlights the fact that the PTSD Checklist, Military Version (PCL-M) returned a score of 67, indicative of some distress and anxiety. The examiner ultimately diagnosed the Veteran with depression not otherwise specified. In response to the request for an opinion as to the etiology of the acquired psychiatric disorder, the examiner stated that it was less likely than not that the Veteran's acquired psychiatric disorder began in or was otherwise related to service. In support thereof, the examiner noted that the Veteran did not seek treatment for several years after his time in the service and he did not report hearing voices until the mid-1990s, nearly 15 years after his discharge. Furthermore, the examiner highlighted the fact that there was no mental health diagnosis given to the Veteran while in the service, despite the recommendation for administrative separation. In support of his claim, the Veteran has submitted two medical opinions from a Dr. J.C. in which Dr. J.C. endorsed the likelihood that the acquired psychiatric disorder either arose in service or is related to service. In the first opinion, dated in February 2012, Dr. J.C. reviewed the claims file and interviewed both the Veteran and his close family members. Dr. J.C. questioned the in-service diagnosis of avoidant personality disorder, which was made by a behavioral science specialist of indeterminate rank in November 1980. According to Dr. J.C., the diagnosis was not supported by any rationale other than a listing of symptoms including over-sensitivity, social withdrawal, and low self-esteem. In addition, Dr. J.C. noted that the behavioral specialist stated that the Veteran's symptoms were long-standing, but did not offer any explanation as to why this was the case. Dr. J.C. found this to be contradictory to the Veteran's entrance examination, which did not note any psychiatric difficulties. Furthermore, Dr. J.C. found that the avoidant personality disorder diagnosis, which is an enduring condition which typically begins in adolescence or earlier, did not accord with lay accounts of the Veteran's behavior prior to and following his period of service, as his family members found that he had a marked behavior change after his discharge. After reviewing the claims file and the testimony of the Veteran's family, Dr. J.C. stated that he believed the Veteran experienced an acute stress reaction in service due to the gas mask training incident that was improperly diagnosed as avoidant personality disorder. With regards to a diagnosis of the Veteran's current acquired psychiatric disorder, Dr. J.C. reviewed the treatment records contained within the claims file as well as the Veteran's own account of his history of treatment for his condition. Although there are no records to support it, Dr. J.C. nevertheless found that the Veteran likely received treatment for depression in 1983 or 84. Dr. J.C. then proceeded to detail the Veteran's history of treatment as reflected in those records that were in the claims file, beginning with treatment in 1984 to 1988 as reported by the Veteran at the Newark VA in 2007 and continuing on through to his most recent treatment by Dr. E.L. at Licking Memorial Family Practice from 2008 to 2011. Dr. J.C.'s review found that the most consistent diagnosis was major depressive disorder and that none of the treating doctors diagnosed the Veteran with avoidant personality disorder. After interviewing the Veteran over the phone, Dr. J.C. diagnosed major depressive disorder, recurrent, severe, with psychotic features, anxiety disorder not otherwise specified, and set forth his opinion that the Veteran exhibited many features of a post-traumatic stress disorder (PTSD) diagnosis. The GAF score was 45, indicating severe symptoms and/or serious impairment in social and occupational functioning. Dr. J.C. concluded the February 2012 opinion by opining that it was as least as likely as not that the acquired psychiatric disorder began during service, with the origin being the gas mask training incident. No rationale was offered for this opinion. However, it should be noted that Dr. J.C. stated that he discussed the Veteran's case with Dr. E.L. and that Dr. E.L. told him that he thought that the acquired psychiatric disorder could have been triggered by the stress of the gas mask training. Furthermore, Dr. J.C. reported that Dr. E.L. stated that he did not believe the Veteran had an avoidant personality disorder. The Veteran submitted an addendum opinion from Dr. J.C. dated in January 2013 that was responsive to the October 2012 VA examination. Dr. J.C. took issue with the lack of any diagnosis on the October 2012 VA examination to account for the Veteran's symptoms of anxiety, suspiciousness, and panic attacks, and believed that there should be a diagnosis of an anxiety disorder. Furthermore, Dr. J.C. noted that the VA examiner did not diagnose or even discuss the in-service diagnosis of an avoidant personality disorder, which Dr. J.C. took as additional evidence to support the fact that this in-service diagnosis was incorrect. As for the October 2012 VA examiner's finding of symptom magnification, Dr. J.C. stated that in his opinion the Veteran's symptoms were well corroborated by lay testimony. The Board has reviewed the February 2012 and January 2013 opinions from Dr. J.C. as they represent a marked departure from the conclusions reached by the October 2012 VA examination. This is significant as Dr. J.C. discussed evidence that was apparently not considered by the October 2012 VA examiner. Furthermore, Dr. J.C. has highlighted significant issues concerning the Veteran's history of mental health issues, beginning with the diagnosis of an avoidant personality disorder in service which has not been affirmed at any point subsequent to the Veteran's discharge. The Veteran's in-service diagnosis of avoidant personality disorder and history of treatment for depression was not thoroughly discussed by the October 2012 VA examiner. Currently, the Board does not know if the Veteran had a preexisting condition that went unnoticed on his entrance examination and was then diagnosed after a few weeks in service, or if the diagnosis of an avoidant personality disorder was inappropriate as contended by Dr. J.C. In addition, there is evidence that the Veteran may have PTSD and/or an anxiety disorder, which must also be addressed by a VA psychiatric examiner. The Board thus finds that the Veteran must be scheduled for a new VA psychiatric examination to first determine whether he had a preexisting mental health condition prior to entering service, and if so, whether that condition was aggravated by service. Then, the Veteran must be given an appropriate diagnosis that takes into consideration evidence of an anxiety disorder and PTSD. Finally, the RO must procure an opinion as to the etiology of the Veteran's acquired psychiatric disorder. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any updated records documenting the Veteran's treatment for any mental health conditions at a VA medical center. 2. After completion of the foregoing, schedule the Veteran for a VA psychiatric examination for the purpose of obtaining an opinion regarding the nature and etiology of the Veteran's acquired psychiatric disorder. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of his acquired psychiatric disorder. All necessary special studies or tests including psychological testing and evaluation must be accomplished. The examiner must first provide diagnoses for all psychiatric disorders found. The examiner must integrate the previous psychiatric findings and diagnoses to obtain a true picture of the nature of the Veteran's psychiatric status. The examiner is asked to specifically determine whether the Veteran has an anxiety disorder and/or PTSD. In evaluating the diagnoses for the Veteran's acquired psychiatric disorder, the examiner should consider the prior diagnosis of anxiety disorder and positive markers for PTSD as reflected in the Veteran's treatment history with VA. In addition, the examiner should consider Dr. J.C.'s February 2012 and January 2013 opinions in which he endorsed a diagnosis of anxiety disorder and found support for a diagnosis of PTSD. Then, based upon the claims file review, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to whether the acquired psychiatric disorder clearly and unmistakably preexisted service, and clear and unmistakably did not worsen beyond natural progression during service. In providing this opinion, the examiner should consider, and discuss as appropriate, the Veteran's in-service diagnosis of an avoidant personality disorder and the lack of any diagnosis of such either before or after service. If the disorder is not found to have clearly and unmistakably preexisted service, and a diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether the reported stressors are sufficient to produce PTSD; and (2) whether there is a link between PTSD symptomatology and the in-service stressors found to be established by the record and found sufficient to produce PTSD. If the disorder is not found to have clearly and unmistakably preexisted service and a PTSD diagnosis is not appropriate, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) any diagnosed disorder is related to the Veteran's military service. In providing this opinion, the examiner must consider, and discuss as necessary, the lay statements contained within the claims file as well as in Dr. J.C.'s February 2012 and January 2013 opinions regarding the Veteran's behavior changes following service in relation to his behavior prior to service. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. 3. After completion of the foregoing, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford him the appropriate time period for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE 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).