Citation Nr: 1646698 Decision Date: 12/13/16 Archive Date: 12/21/16 DOCKET NO. 11-29 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Timothy R. Franklin, attorney ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2011, the Veteran initially requested a Board videoconference hearing which he later withdrew. There is no pending request for a hearing. This matter was previously before the Board in September 2014 and was remanded for additional development. Among the issues on appeal were entitlement to service connection for bilateral hearing loss. In a September 2015 rating decision, the RO granted service connection for this issue. Accordingly, the Veteran's service connection claim for bilateral hearing loss has been resolved in full and is therefore no longer before the Board. However, for the reasons detailed below, another remand is needed before the Board can adjudicate the Veteran's claim seeking entitlement to service connection for an acquired psychiatric disorder. Stegall v. West, 11 Vet. App. 268 (1998). In November 2016, the Veteran's attorney submitted a request that the Veteran's case be advanced on the docket because the Veteran was homeless and receiving services from a homeless shelter. The motion to advance the case on the docket is granted. 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 originally filed a claim seeking entitlement to service connection for severe depression, anxiety and PTSD. The medical evidence of record indicates treatment and diagnoses for a number of psychiatric conditions, including bipolar disorder, anxiety disorder, PTSD, and depressive disorder. See, e.g., January 2010 VA psychiatry note, March 2011 VA primary care note. In August 2015, the Veteran was afforded a VA contract examination where he was diagnosed with polysubstance dependency and anti-social personality disorder. The examiner noted that the Veteran had symptoms of irritability and aggressiveness. The examiner further remarked that the Veteran was diagnosed with ADHD as a child, and his irritability was a problem long before he entered the military. Additionally, the Veteran reported being prescribed Ritalin as treatment, as well as being sexually abused as a child. It was noted that the Veteran was diagnosed with PTSD "among other diagnoses" in September 2009; however, the VA examiner stated that the diagnoses were related to several traumas involving the deaths of the Veteran's son and friends that occurred after military service. The VA examiner noted that the Veteran had no mental health diagnoses at discharge. The examiner stated that the Veteran had an extensive addiction record and admitted to heavy use of alcohol, cocaine and methamphetamines. The examiner went on to say that the Veteran appeared to be malingering. Further, while the Veteran was cooperative in his presentation, the VA examiner stated that testing greatly over-represented his supposed symptoms, adding that the irritability and impulsivity the Veteran had as a child has been increasingly prevalent throughout his life and has led to his "present correct diagnosis." The VA contract examiner concluded that the Veteran's claimed psychiatric disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by military service. In a May 2016 statement, the Veteran's attorney argued that the August 2015 VA contract examination appeared inadequate for rating purposes. While the Veteran's medical records note several psychiatric diagnoses, the VA examiner failed to explain if these past diagnoses had been resolved. The Board agrees that the August 2015 VA examination report is inadequate to adjudicate the Veteran's claim. While the examiner stated that the Veteran appeared to be malingering and that his testing greatly over-represented his symptoms, he provided no discussion of the numerous psychiatric diagnoses in the Veteran's medical record. Further, the examiner provided no independent assessment of whether any of these diagnoses in the Veteran's records were related to his active duty service. As such, the Veteran should be afforded a new VA examination with more fully responsive opinions on this issue. Since the claims file is being returned it should be updated to include any outstanding VA treatment records dated since June 2012. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 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. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran. If no medical records are available, this fact should be noted in the Veteran's claims file. 2. Then schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any currently diagnosed psychiatric disability. The claims folder and any pertinent medical records should be made available for review by the examiner. The examiner should perform any diagnostic tests deemed necessary and elicit from the Veteran a complete medical history, including any medical treatment. Following a review of the record, and any necessary testing, the examiner should address the following questions: (a) Identify all of the Veteran's presently diagnosed psychiatric conditions. In answering this question, the VA examiner should specifically address treatment records in the Veteran's claims file indicating a number of psychiatric diagnoses and state whether the Veteran was diagnosed with any of these conditions during the period on appeal. (b) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that any currently diagnosed psychiatric disability existed prior to the Veteran's entry onto active duty? (c) If the answer is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the preexisting psychiatric disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (d) If the answer to either (b) or (c) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed psychiatric disorder had its onset in service? The opinions provided thus far on this determinative issue have not included the required level of explanation or rationale. To wit, in attempting to comment on this determinative issue of causation, the August 2015 VA contract examiner provided no discussion of the numerous psychiatric diagnoses in the Veteran's medical records. There was no discussion of whether any of these diagnoses were valid and no independent assessment was made of whether any prior psychiatric diagnosis was present during the appeal period and may have been related to the Veteran's active duty service. The VA examiner is specifically asked to comment on these prior mental health diagnoses in the opinion. A full rationale is to be provided for all stated medical opinions. If the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 3. Then re-adjudicate the Veteran's claim. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. 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. 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). _________________________________________________ M. E. LARKIN 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).