Citation Nr: 1722178 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 13-21 564A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to April 1982 with subsequent service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a June 2015 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a November 2015 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that the appeal must be remanded for further development. The Board is cognizant that the Veteran's case has been in adjudicative status for several years and it has already been remanded in the past, but finds that a remand is essential for a full and fair adjudication of the claim. In the June 2015 Remand, the Board, in pertinent part, instructed that the Veteran be afforded a VA addendum opinion as to the diagnosis and etiology of his claimed acquired psychiatric disorder to include PTSD. A VA addendum opinion was therefore obtained in October 2015, in which the examiner indicated that the Veteran does not meet the DSM-V criteria for a diagnosis of PTSD. However, the examiner confirmed an on-going diagnosis of dysthymia, which she determined did not pre-exist the Veteran's military service, and was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained, "[t]here is no evidence that this disorder existed in service or is related to any in-service event or occurrence." Critically, in rendering this limited rationale, the examiner failed to address the Veteran's service treatment records, which, in addition to noting his severe alcohol and drug abuse, also documented his complaints of depression and violent temper. See, e.g., the service treatment records dated June 1979 and November 1979. Frequent trouble sleeping was also reported in the Veteran's February 1982 service separation examination. Accordingly, the October 2015 VA addendum opinion is inadequate as the examiner's conclusions were unsupported by the provided rationale, which failed to address the Veteran's in-service psychiatric complaints. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board therefore finds that this matter must be remanded in order to afford the Veteran with a new VA opinion to address the etiology of the diagnosed psychiatric disability. Additionally, the March 2014 VA examination report noted the Veteran's statement that he has been in receipt of disability benefits from the Social Security Administration (SSA) since 2009. As these records are potentially pertinent to the pending claim, upon remand the AOJ should obtain the Veteran's SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010) (VA's duty to assist includes obtaining records from SSA when potentially relevant). Upon remand, the Veteran's updated VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Request that SSA furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has recently received. The Board is particularly interested in records of any pertinent treatment or evaluation that the Veteran may have received at a VA health care facility since October 2015. All such available documents should be associated with the claims file. 3. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed acquired psychiatric disability. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then provide an opinion as to the following: (a) Is there is clear and unmistakable (obvious, manifest, and undebatable) evidence that the Veteran's current psychiatric disorder, to include dysthymia, existed prior to his active military service? (b) If the answer to question (a) is yes, the examiner should then opine as to whether there is clear and unmistakable (obvious, manifest, and undebatable) evidence that the pre-existing psychiatric disorder WAS NOT aggravated (i.e., permanently worsened) during service, or whether it is clear and unmistakable that any increase was due to the natural progress of the disability. (c) If the answer to question (a) is no, is it at least as likely as not (i.e., at least a 50 percent probability) that the current psychiatric disorder had its onset during military service or is causally related to such service, to include the documented in-service complaints of depression, violent temper, and frequent trouble sleeping, as noted above? In answering these questions, the examiner should address the Veteran's assertions of continuity of symptomatology dating from his military service. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Should the examiner decide that a psychological examination of the Veteran is required to address these questions, one should be scheduled. 4. Thereafter, readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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). These claims 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2016).