Citation Nr: 1751145 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-04 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, depression, and schizoaffective disorder. REPRESENTATION Veteran represented by: J. Wade Jenkins, Attorney-at-Law ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1965. This appeal comes to the Board of Veterans' Appeals (Board) from an appeal of a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March and December 2015 and May 2017, the Board remanded the claim for further development. In August 2017, a timely Form 9 was received with regard to the claim for service connection for bilateral hearing loss. The Board observes that the issue is not yet before the Board as the Veteran elected a hearing at a local RO before a Veterans Law Judge, which has not yet been scheduled. Accordingly, the Board will not take jurisdiction of this issue. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, depression, and schizoaffective disorder must again be remanded to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2017, the Board remanded the claim for entitlement to service connection for an acquired psychiatric disability for an addendum medical opinion. In June 2017, the RO obtained the addendum opinion. The Board finds that the addendum opinion is inadequate. First, after stating that there was no clear and unmistakable evidence of the diagnosis of depressive disorder and/or unspecified anxiety disorders prior to service, the examiner stated that there were strong clinical indications, based on the Veteran and his sister's statements, that the anxiety disorder existed prior to service. When asked if the disorder was aggravated beyond its natural progression during service, the examiner stated that "There is no clear and unmistakable evidence of a psychiatric condition being present prior to the military, though there is strong clinical indication. There is contradictory lay testimony that Veteran's tendency to socially isolate was exacerbated during military service. His sister's Buddy/Lay Statement notes Veteran became more reclusive after his return from the military. However, in a letter to BVA present in Veteran's claims file, Veteran noted he had been unable to associate with others after he had killed his father to protect his mother." The examiner stated that she could not reconcile the contradictory statements. However, the examiner used the statements and concluded that there is strong clinical indication that the Veteran's symptoms were present prior to his military service. Second, in its May 2017 remand, the Board asked the examiner to address if either major depressive disorder or unspecified anxiety disorder did not clearly and unmistakably pre-exist service, is it at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's service, to include his reported stressors related to fear of hostile military or terrorist activity. The examiner found "no clear and unmistakable evidence" that any psychiatric condition was related to the Veteran's military service, or specifically related to his fear of hostile military or terrorist activity. The Board finds that the examiner used an improper evidentiary standard and did not provide an adequate opinion with rationale regarding whether the Veteran's acquired psychiatric disorder is related to active service. In light of the foregoing, the Veteran should be afforded another VA examination with an etiology opinion as to any currently diagnosed psychiatric disorder. Accordingly, the case is REMANDED for the following actions: 1. Obtain all updated records of VA or adequately identified private treatment records. 2. After the above development has been completed to the extent possible, schedule the Veteran for an appropriate VA examination for his acquired psychiatric disorder. The entire claims file, including a copy of this remand, should be provided to the examiner for review, and the examiner should note that it has been reviewed. All necessary tests and studies should be performed, and all findings should be set forth in detail. The examiner should note that the Veteran's claim must be considered pursuant to the DSM-IV. Based on a review of the entire record, the examiner should respond to the following: a. Is at least as likely as not (a 50 percent or greater probability) that any psychiatric disability had its onset during active service or is etiologically related to the Veteran's active duty service? b. If PTSD is diagnosed, is it at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's service, to include his reported stressors related to fear of hostile military or terrorist activity therein, such as when he was stationed at Elgin AFB during the Cuban Missile Crisis and feared for his life? The examiner should consider all other clinical evidence of record, including relevant lay statements, service treatment records, and ongoing medical records. The examiner should also consider the previous VA examinations and opinions, as well as Dr. Dimitross' June 2011 and June 2012 correspondences. A complete rational should be provided for any opinion expressed. 3. Thereafter, re-adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, depression, and schizoaffective disorder. If any benefit sought remains denied, a Supplemental Statement of the Case should be provided to the Veteran and his representative after according the requisite time to respond. The matter should then be returned to the Board for appropriate 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). _________________________________________________ S. HENEKS 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) (2017).