Citation Nr: 1751382 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-01 402 ) 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 schizophrenia, including as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1983 This matter comes before the Board of Veterans' Appeals Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2014, the Board reopened and remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. In the June 2014 remand, the Board explained that the scope of the claim included any psychiatric condition, including adjustment disorder with anxiety and depressive features, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a psychiatric condition due to treatment furnished by VA, was raised by the Veteran in multiple statements, including in December 2009 and January 2015. A section 1151 claim constitutes a separate and distinct claim for VA benefits. Anderson v. Principi, 18 Vet. App. 371, 376-77 (2004). Accordingly, that claim is not included within the scope of the instant appeal. That issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the Veteran when further action is required. REMAND The Board has conducted a further review of this matter, but has found that additional evidentiary development is warranted before a final decision may be reached. STRs First, an advance review of the Veteran's STRs indicates that there is an outstanding in-service psychiatric evaluation report not currently associated with the claims file. During service, the Veteran was admitted for treatment of back pain in November 1982. According to the narrative summary of that admission, the Veteran was noted to have been evaluated by Psychiatry who felt he was having problems with being frustrated at work and not being recognized for the good job he had been doing. A copy of this psychiatric evaluation report is not in the available STRs. Service treatment records do not routinely include records of mental health treatment. See VBA Manual M21-1, III.iii.2.A.1.e., Types of Records Included in STRs. They are maintained with the records of a military treating facility, or a civilian treating facility. VBA Manual M21-1, IV.ii.1.D.2.a., Location of In-Service Mental Health Treatment Records. For that reason a separate request for records of mental health treatment must be made. See VBA Manual M21-1, III.iii.2.D.3.a., PIES Request Codes Beginning With "C"; III.iii.2.B.4.e., How to Request Clinical Records from NPRC. This action must be taken upon remand. New Examination The Board also finds that a new VA examination is needed. Upon the last remand from the Board, a VA examination was conducted in July 2014. At that time, the VA examiner gave a negative opinion. The examiner reasoned that the Veteran's "mental health difficulties started in 1987 when a confluence of events occurred: a) his father died, b) he experienced a divorce; c) he had lost 4 jobs [due] to being too responsible (his perception) and d) was having difficulty transitioning to civilian life because he didn't want to leave service." The VA examiner explained that "taking the Veteran at his word, he was confused, disoriented, lonely, alone, [and] unemployable." This rationale is understandable, but it does not follow from all of the facts and information of record. First, the examiner took the Veteran "at his word" that his symptoms started in 1987. It is not clear why the VA examiner took the Veteran "at his word" when the Veteran has a long history of providing inaccurate and contradictory statements, whether intentionally or unintentionally, regarding his history. For instance, in comparison to his statement to the VA examiner, the Veteran was first admitted for treatment in February 1989, where he complained of "multiple mental problems," feeling depressed and scared, for approximately 2 weeks. At a separate evaluation during this admission, he reported no previously psychiatric history. Several years later, during an August 1993 admission, he related his problems to December 1988 when he first began hearing voices. In August 1994, he reported his problems starting in 1986. During VA treatment in February 2009, he again denied any psychiatric symptoms or diagnosis prior to his first hospitalization in 1989. Conflicting with these accounts, he reported during a screening for the February 1989 admission that he did not know when he realized he had emotional problems. A February 1989 administrative note documents his report of dissassociative/amnestic lapses that started as a child when he stole money but had no recollection of it. Relatedly, while still hospitalized, he reported in March 1989 that he recalled his mother and father blaming him during childhood for things he did not do, which pattern seemed to be persisting into adult life. The evaluator concluded that "I think he has a very severe psychosis and that the psychotic process has been underway since childhood." Later, during post-service treatment in July 1993, the Veteran complained of hallucinations and delusion for one month, but having lost his job, marriage, etc. during the past 15 years due to this. Later in July 1993, he reported that "throughout the 1980s, he began to deteriorate in functioning, growing more isolative, decrease in self-care." Then in February 1995, he reported "a lifelong pattern of never feeling good enough, perpetually competing with his older brother." During treatment in October 1998, he felt his problems first began in his 20s, but did not become severe until a "divorce, breakdown, and hospitalization at age 36." Similarly, at VA in May 2013, he reported having had an "adjustment disorder" since he was discharged from the military in 1983. In light of these conflicting accounts, the Veteran's statement to the VA examiner giving an onset of symptoms beginning in 1987 is, at best, unreliable and inconsistent. The VA examiner did not account for the conflicting statements regarding his history. Thus, it is not clear why the July 2014 VA examiner took him "at his word" that his symptoms began at that time. Relatedly, as indicated, there is an outstanding in-service psychiatric evaluation report. The VA examiner did not have this report available to review. Therefore, it cannot be found that the VA examiner's opinion is based on a complete and accurate factual foundation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Correspondingly, while the Veteran, as shown, has intermittently given a history of symptoms since childhood, the Board notes that a psychiatric condition was not diagnosed at entry, and given such inconsistent and speculative accounts, the Board preliminarily finds that this would not amount to the type of clear and unmistakable evidence that would rebut the presumption of soundness. The Board will therefore not request further examination in this respect and address the claim solely on the basis of direct service connection. Aside from these concerns, the Veteran has also raised a secondary theory of entitlement. He is currently service connected for a low back condition (herniated nucleus pulposis, lumbar spine). In a September 2009 testimonial statement, the Veteran described having psychiatric symptoms resulting from his low back symptomatology. Tending to provide some support for this theory, he was seen at VA in February 2009. He described seeking treatment for PTSD, and it was noted that he was referring to the trauma of his back injury and the resulting disability, along with chronic pain issues. The provider found that the Veteran "actually was referring more to a type of grief and loss reaction to his physical disabilities and chronic pain." (He also described his post-service psychosocial issues, including the death of his father.) The resultant diagnosis was adjustment disorder with some anxiety and depressive features. The July 2014 VA examiner was not asked, and did not give, an opinion on this secondary theory of entitlement. Overall, the Board finds that there was substantial compliance with the Board's remand directives to the extent the examiner answered the questions posed by the Board. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). Nonetheless, the VA examiner's opinion is not entirely adequate as it does not address the Veteran's conflicting statements regarding his psychiatric history, the examiner did not have the missing STR to review, and it did not address the reasonably raised secondary theory. As such, a new VA examination is needed. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, with a request for copies of all mental health records, including a psychiatric evaluation in or around December 1982. Make as many requests as are necessary to obtain these records. Those efforts may end only if it can be concluded that the records sought do not exist or that further efforts to obtain those records would be futile, such as if the record custodian advises VA that the requested records do not exist or the custodian does not have them, and there is no further indication of an alternative records custodian who may have the records. 2. After completing all development set forth in paragraph 1 above, arrange for the Veteran to undergo a VA examination to address the claimed psychiatric disorder. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all psychiatric disorders found extant. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? In answering question (b), the examiner is asked to consider the conflicting statements from the Veteran regarding his history (as detailed herein above in the narrative portion of this remand). The examiner is asked to explain why his statements make it more or less likely that a current psychiatric condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported. (c) Regardless of the answer to question (b) above, is any psychiatric condition proximately due to, the result of, or caused by any other medical condition(s), such as the service-connected low back condition (herniated nucleus pulposis, lumbar spine)? If so, please identify the primary medical condition(s). (d) If not caused by another medical condition, has any disorder been aggravated (made worse or increased in severity) by any other medical condition(s), such as the service-connected low back condition (herniated nucleus pulposis, lumbar spine)? If so, please identify the primary medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. In answering all questions, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 3. After completing all actions set forth in paragraphs 1-2, plus any further action needed as a consequence of the development completed in paragraphs 1-2 above, readjudicate the remanded claim with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and the Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). _________________________________________________ Michael J. Skaltsounis 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) (2016).