Citation Nr: 1752731 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-04 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), to include posttraumatic stress disorder (PTSD) due to military sexual trauma. 2. Entitlement to an effective date prior to December 2, 2010, for the grant of a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2001 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs' (VA) Agency of Original Jurisdiction (AOJ) in Montgomery, Alabama. In May 2005, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the AOJ. In August 2011, the Veteran testified during a hearing at the AOJ before the undersigned; transcripts of these hearings are of record. In March 2014, the Board remanded, in pertinent part, the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to a TDIU in order to allow the AOJ to review additional evidence. In August 2015, the Board again remanded these matters for evidentiary development, to include affording the Veteran a new VA psychiatric examination. For the reasons discussed below, the Board finds that the AOJ has not substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a January 2017 rating decision, the AOJ awarded entitlement to a TDIU, effective December 2, 2010. The Veteran filed a notice of disagreement as to the effective date assigned in February 2017. In May 2017, the AOJ issued a statement of the case denying entitlement to an earlier effective date for the award of TDIU. The Veteran perfected her appeal as to this issue in June 2017. Notably, the Veteran indicated in her VA Form 9 that she wished to participate in a Board Central Office hearing. However, she withdrew her hearing request in written correspondence received in September 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that her current acquired psychiatric disorder is related to service, to include as due to an in-service sexual assault. She alternatively contends that her acquired psychiatric disorder is caused or aggravated by her service-connected cervical and thoracolumbar strain. Following a March 2011 VA examination, the Veteran was diagnosed with undifferentiated somatoform disorder, rule out conversion disorder. The VA examiner indicated that this diagnosis was due to the Veteran's physical complaints, i.e., pain and fatigue, stemming from both service-connected and nonservice-connected conditions. In June 2011, a VA psychologist diagnosed mood disorder secondary to chronic pain and major depressive disorder, recurrent (military sexual trauma), but did not offer a supporting rationale for either opinion. In its August 2015 remand, the Board directed the AOJ to afford the Veteran a new VA psychiatric examination to identify all current psychiatric disabilities and to "provide an opinion as to whether they are caused or aggravated by service-connected cervical or thoracolumbar strain or are otherwise related to service." Thereafter, in July 2016, a VA psychologist examined the Veteran and diagnosed somatic symptom disorder, adjustment disorder with depressed mood, and unspecified personality disorder. The examiner opined that none of the indicated diagnoses were related to service and were "less likely caused by or aggravated by [the Veteran's] service-connected cervical and thoracolumbar spine strain." No rationale was provided as to the claim for secondary service connection. In August 2016, the VA psychologist's report was reviewed by a VA psychiatrist, who concurred with the report and findings with no additional explanation. In May 2017, the VA psychiatrist who reviewed the July 2016 examination report re-examined the Veteran and confirmed the diagnoses noted in the prior examination. The examiner opined that it was less likely as not that any of the Veteran's psychiatric disorders were related to her military service; that there was insufficient evidence to support a military sexual trauma; that the Veteran did not meet the criteria for PTSD; and that her current psychiatric disorders were less likely as not proximately due to, the result of, or aggravated beyond their natural progression by cervical and/or thoracolumbar strain. The examiner explained that the "[r]ationale for all opinions is based on a review of all records available." The examiner further stated: "There is no basis for the claim." On review, the Board finds that the July 2016 and May 2017 VA psychiatric examinations do not constitute substantial compliance with the Board's remand instructions with respect to the secondary service connection theory of entitlement. In sum, while the examination reports offer negative opinions with respect to secondary service connection, they are conclusory and contain no substantive rationale. Moreover, they do not meaningfully address the evidence, previously identified by the Board, of a link between the Veteran's physical disabilities and her psychiatric symptoms. In light of the above, a remand is once again warranted so that another VA examination and opinion may be afforded. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA provides a medical examination or obtains an opinion it must ensure that the examination or opinion is adequate). As the outcome of the claim for an earlier effective date for the award of TDIU may be impacted by the disposition of the above-discussed claim for an acquired psychiatric disorder, this issue must be remanded as well. See Parker v. Brown, 7 Vet. App. 116 (1994) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Take appropriate action to obtain any relevant outstanding private and VA treatment records. Any attempt should be memorialized in the Veteran's file. 2. Then, schedule the Veteran for a VA examination by a psychiatrist as to the etiology of any previously or currently diagnosed psychiatric disorder she has demonstrated since she filed her service connection claim. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records (including VA examination reports), and lay statements. After reviewing the record, the psychiatrist should indicate whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's psychiatric disorders are either (a) caused or (b) aggravated by her service-connected cervical and thoracolumbar strain. A complete rationale should accompany each opinion provided. A statement indicating that a medical opinion is based upon the evidence of record is not sufficient. 3. After the requested development has been completed, the AOJ should review any report or opinion to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. After completing all indicated development, the AOJ should readjudicate the claims remaining on appeal, to include the claim of entitlement to an earlier effective date for the award of TDIU, in light of all the evidence of record. If any benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and her representative a fully responsive supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the 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. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).