Citation Nr: 1644171 Decision Date: 11/21/16 Archive Date: 12/01/16 DOCKET NO. 11-18 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1979 to June 1982. In addition, she had service in the National Guard from September 1984 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the pendency of the appeal, in a July 2016 rating decision the Veteran was granted a 50 percent rating for migraine headaches, effective March 3, 2008, the date of claim. The Veteran was advised that the newly assigned 50 percent disability rating was the maximum rating allowable under 38 C.F.R. § 4.124a, Diagnostic Code 8100. As such, this constitutes a full grant of benefits sought on appeal. Consequently, the issue of entitlement to a disability rating in excess of 30 percent for migraine headaches is no longer before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the maximum benefit available under law, unless he expressly indicates otherwise). The Veteran testified at a Travel Board hearing before the undersigned in May 2013. A transcript of the hearing is associated with the claims files. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. 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 The Veteran contends she is entitled to service connection for an acquired psychiatric disability, claimed as PTSD, as a result of in-service stressors. The Board finds that a remand is warranted for a supplemental VA opinion. The matter was previously before the Board in November 2013. On remand the RO was directed to obtain all outstanding Social Security Administration (SSA) records, additional VA treatment records, and a VA examination. SSA records were associated with the claims file in May 2016 and VA treatment records from Birmingham VAMC from March 2011 through April 2016 have been associated with the claims file. The Veteran was afforded VA examinations in December 2013 and July 2016. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Regretfully, another remand is necessary to comply with the November 2013 remand directives. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with a VA examination and opinion in December 2013. The examiner found the Veteran had a diagnosis of PTSD conforming to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). The examiner noted that it was less likely than not that the Veteran's current psychiatric disability was incurred in or caused by active service. The Veteran's treatment in-service in September 1980 and diagnosis of conversion/psychosomatic reaction, within the context of having fainting spells was noted but the examiner noted an absence of treatment until 2006, suggesting these PTSD symptoms were not related to the Veteran's claimed in-service stressors. Id. However, a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran was afforded another VA examination in July 2016. The examiner found the Veteran had a diagnosis of PTSD, with secondary generalized anxiety conforming to DSM-V. The examiner noted the Veteran's reported in-service stressor, but found such did not meet the criterion to support a diagnosis of PTSD. The examiner noted that it was less likely than not that any current psychiatric disability was incurred as a result of the Veteran's active service, noting the absence of a diagnosed psychiatric disability in-service. The examination was inadequate as the examiner failed to address the September 1980 symptoms of headaches and fainting in-service. As a result a supplemental VA opinion is warranted. Further, the Veteran through her representative has provided medical literature classifying fainting and headaches as common signs/symptoms of PTSD, anxiety, stress and other trauma related psychiatric disabilities. See October 2016 Appellate Brief. The provided medical literature and the Veteran's in-service reports of headaches and fainting spells in September 1980 should be addressed in a supplemental VA opinion, addressing whether these symptoms in-service were manifestations of PTSD. 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. Refer the case to the July 2016 VA examiner, for a supplemental opinion. If the same examiner is not available, the claims folder should be forwarded to another clinician. If evaluation of the Veteran is deemed necessary, appropriate arrangements should be made to evaluate the Veteran. The examiner shall review the Veteran's claims folder, any additional treatment records and evidence acquired, and all prior opinions provided. The examiner shall answer the following question: a. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed acquired psychiatric disability, claimed as PTSD had onset in service or is otherwise etiologically related to her active service? The examiner's attention is drawn to the representative's October 2016 argument and provided medical literature suggesting that fainting and headaches can be physical symptoms of PTSD and can occur as a result of exposure to trauma, asserting that the Veteran had in-service symptoms of headaches and fainting which were attributable to her PTSD. See VBMS, Document Type Appellate Brief, receipt date October 6, 2016. The opinion should address the Veteran's in-service instances of headaches and fainting spells, and if these were manifestations of PTSD as a result of verified in-service stressors. See September 1980 Service Treatment Record. The examiner is advised that the Veteran served on active duty from August 1979 to June 1982 and that only verified stressors that occurred during this period of duty should be considered with respect to the claim for service connection. The examiner is further advised that the Veteran served in Germany as an administrative specialist and did not serve in combat or during a period of hostilities. The term "as likely as not" (at least fifty percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner 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 (2010). 2. Thereafter, take any additional development action deemed warranted and adjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant 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 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). _________________________________________________ L. M. BARNARD Acting 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).