Citation Nr: 1647802 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 10-38 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for acquired psychiatric disability, to include bipolar disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Sean A. Kendall, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from January 1971 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada,. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for PTSD as encompassing entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder and PTSD, regardless of the precise diagnosis. In June 2010, the Veteran testified during a hearing before a Decision Review Officer at the RO and, in September 2011, he testified during a videoconference hearing before the Board. Transcripts of each hearing are of record. The claim was remanded by the Board for additional development in December 2011 and November 2014. The issue of entitlement to service connection for an acquired psychiatric disability was then denied by the Board in a September 2015 decision. The Veteran filed an appeal of that denial to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the Veteran's representative and VA General Counsel filed a joint motion for remand (JMR). The Court granted the JMR later that month, vacating the September 2015 Board decision and remanding for additional proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the June 2016 JMR, the parties agreed that the claim needed to be remanded to the March 2015 VA examiner, if available, for consideration and discussion of the findings of an October 2010 VA neuropsychology consultation, which revealed a diagnosis of PTSD based on the Veteran's reports of an in-service assault. The JMR explained that the March 2015 VA examiner noted the Veteran's reports regarding an incident wherein a fire extinguisher exploded while he was charging it, which the examiner determined was not a stressor for PTSD. The 2010 examiner, however, indicated that the Veteran reported that he was assaulted with a fire extinguisher. The parties acknowledged that the difference regarding the fire extinguisher stressors could be due to a change in how the Veteran described the event, but stated that the examiner should have discussed the 2010 report more thoroughly, especially where the 2010 examiner based her diagnosis of PTSD upon such an assault. The JMR also noted that the 2015 VA examiner required "unequivocal markers" of an in-service assault, which is contrary to the holding in Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011) (medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated). As such, the Board finds that the claim should be forwarded to the March 2015 VA examiner for clarification consistent with the JMR and this remand. If the same examiner is unavailable, a new VA examination and opinion should be obtained. All outstanding records of ongoing VA treatment should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records created since November 2014 and associate them with the virtual claims file. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. After completing the development requested above, forward the claim to the same examiner who performed the March 2015 examination for further clarification and opinion, as outlined below. If the same examiner is unavailable, schedule the Veteran for a VA psychiatric examination to determine whether any current psychiatric disability, including PTSD and bipolar disorder, is related in whole or part to stressors or other disease or injury in service. The virtual claims folder should be considered in the examination report or addendum. The examiner should provide the following: a) Reconsider and discuss the October 2010 VA neuropsychology consultation, in which the Veteran described being assaulted with a fire extinguisher and, based on that stressor, the examiner diagnosed PTSD. b) Then, for each current psychiatric disability, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's current (present at any time since 2009) psychiatric disabilities, in whole or part, had their onset in service, are related to his reported in-service stressors, or are otherwise the result of a disease or injury in service (including a February 1972 Report of Medical History, noting trouble sleeping, depression, or excessive worry, and nervous trouble associated with job stress and personal problems). In providing this opinion, the examiner must specifically consider and discuss the October 2010 VA neuropsychology consultation. The examiner is advised that a medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated and that unequivocal markers, as discussed in the March 2015 opinion, are not necessary in such a case. c) If, after reviewing the October 2010 opinion, the examiner finds that the Veteran meets the criteria for a diagnosis of PTSD, the examiner should specify the stressor(s) supporting the diagnosis. The examiner should provide a rationale for this opinion. The Veteran is competent to report symptoms and observable history. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. The absence of evidence of treatment for psychiatric symptoms in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 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). _________________________________________________ JAMES L. MARCH 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).