Citation Nr: 1751708 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-21 875A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board observes that the medical evidence of record shows the Veteran has been diagnosed with major depressive disorder, bipolar disorder, and PTSD. As such, it is clear that the Veteran is asserting entitlement to service connection for a psychiatric disability or disabilities, however diagnosed. The United States Court of Appeals for Veterans Claims has determined that a veteran is not held to the disabilities he has listed as a lay person without medical expertise; rather, service connection should be considered for any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The issue on appeal has been restated accordingly. In May 2015, the Board remanded this appeal in order to afford the Veteran with a mental health examination and to obtain missing VA records. In terms of the VA examination, the Board finds there has been substantial compliance with its May 2015 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) In terms of the Board's May 2015 remand directive to obtain missing VA records, the Board finds there has not been substantial compliance, and this issue is the subject of the remand below. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he suffers from an acquired psychiatric disorder, to include PTSD, as a result of his service aboard the U.S.S. Mauna Kea during the Vietnam War. The Board finds that further development is necessary before adjudicating this claim for the following reasons. Addendum Opinion In May 2015, the Board remanded this appeal in order to afford the Veteran with a mental health examination. In September 2015, the Veteran was afforded a VA PTSD examination. In the September 2015 VA examination report, the VA examiner opined that based on the clinical interview with the Veteran, psychological testing results, and review of available medical records, the Veteran did not currently meet the criteria for a PTSD diagnosis or any other trauma-specific diagnosis at that time, despite having criterion A stressors from his time in the Navy. The VA examiner noted a diagnosis of "other specified personality disorder, mixed personality features." The VA examiner noted that there were limited mental health records available on the Veteran, specifically noting that the Veteran's mental health treatment records from Holly Hill Hospital, Monarch (a community mental health agency), and from the Washington D.C. VA Medical Center (VAMC) were not available. The VA examiner noted that if additional mental health records were available, she would review those records to see if any changes to the current diagnoses are warranted. Significantly, subsequent to the September 2015 VA PTSD examination, the Veteran sought mental health treatment at the Durham VAMC, and in February 2016, the Veteran was assessed with a PTSD diagnosis. Based on the medical records from Durham VAMC, it appears that the Veteran, since the time of the Veteran's diagnosis of PTSD to the current date, is under mental health treatment for PTSD. Although, these records reflect a current diagnosis of PTSD, the records do not indicate whether there is a link between the Veteran's current PTSD symptoms and his claimed in-service stressors. Thus, an addendum opinion is necessary in order for the September 2015 VA examiner, after reviewing the additional medical records, and the current PTSD diagnosis, to address whether the Veteran has a PTSD diagnosis with symptoms that are related to his claimed in-service stressors. Additionally, in October 2015, the Veteran more recently contends that his psychiatric symptoms began in service. Specifically, the Veteran asserts that his going absent without leave (AWOL) during his time in service demonstrates that he had a psychiatric disorder in service or is evidence of "any behavioral disturbances." See October 2015 Statement in Support of Claim. In the September 2015 VA examination report, the VA examiner noted that the Veteran had a "tendency to go AWOL," during which the Veteran would disappear for four to five days in order to explore the country. Given that the Veteran has diagnoses of major depressive disorder and bipolar disorder (acquired psychiatric disorder), and the Veteran's recent assertions that his going AWOL was attributed to his psychiatric disorder, an addendum opinion is necessary to address whether the Veteran's going AWOL during service is related to a psychiatric disorder, to include major depressive disorder and bipolar disorder. Outstanding Records In terms of outstanding medical records, in the September 2015 VA examination report, the VA examiner noted that the Veteran reported he underwent mental health treatment at Holly Hill Hospital (fall of 2014). Additionally, the VA examiner noted that the Veteran reported he was currently seeking mental health treatment with Monarch. However, these records have not been associated with the claims file. Additionally, the Board's May 2015 remand requested that the RO obtain the Veteran's mental health records from the Washington D.C., VAMC, specifically records that pertained to the Veteran's reported psychiatric hospitalizations from the mid-1980s to the mid-1990s. However, it is unclear whether the RO attempted to obtain these records after the Board's May 2015 remand. The Board notes that in a June 2011 correspondence, the Washington D.C., VAMC acknowledged the RO's request for copies of medical records for the dates of April 1, 1986 to June 30, 1986, and indicated that these records have been archived and a search for these records will begin to see if these records can be located. However, nothing further was provided. Thus, on remand, the RO must attempt to obtain these records. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO determines that these records are unavailable after reasonable efforts to obtain these records have been exhausted, the RO must indicate such in the claims file and notify the Veteran that these records are determined to be unavailable. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding records of mental health medical treatment from VA or private health care providers, to include the following records: (a) VA mental health treatment records from Washington D.C. VAMC from January 1980 to January 2000. (b) Private medical records from Holly Hill Hospital from 2014. (c) Private mental health treatment records from Monarch in North Carolina (community mental health agency). (d) Any other outstanding VA mental health treatment records. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2017). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. After the development above has been accomplished to the extent possible, provide the Veteran's entire claims file, to include a copy of this REMAND, to the September 2015 VA examiner (or another qualified medical professional if this examiner is not available). The examiner is requested to provide an addendum medical opinion addressing the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a diagnosis of PTSD that is related to his claimed in-service stressors. In providing this opinion, the examiner should reconcile any findings with that of the February 2016 VA medical treatment records (diagnosis of PTSD), the September 2015 VA examination report, and the June 2015 private medical opinion provided by Dr. C.C. (in which Dr. C.C. opines that it is at least as likely as not that the Veteran's diagnosis of PTSD is related to the reported stressors experienced while in service). (b) Whether it is at least as likely as not (50 percent probability or greater) that the periods that the Veteran went AWOL during service are related to a psychiatric disorder in service or early manifestations of a psychiatric disorder, to include major depressive disorder and bipolar disorder. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted or because of some other reason. 3. When the development requested has been completed, the case should be readjudicated by the RO. If any benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).