Citation Nr: 1753053 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 02-04 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia and a depressive disorder. REPRESENTATION Appellant represented by: Julia N. Gieseking, Esquire ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a formal hearing conducted by a Hearing Officer at the RO in October 2002. A transcript of that hearing is of record. The Board notes the Veteran, through counsel, submitted a private medical opinion regarding his acquired psychiatric disability in October 2017, after the issuance of the most recent Supplemental Statement of the Case (SSOC). In an attached Brief in Support of Appelant, the Veteran's counsel waived RO review of this private medical opinion. See 38 C.F.R. § 20.1304 (c) (2017). This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examiners did not fully comply with the Board's November 2016 remand and have not provided thorough opinions. In April 2017, the Board remanded this matter to the AOJ for a new VA examination. VA afforded the Veteran a VA mental disorders examination that same month, at which a diagnosis of recurrent delusional disorder, in partial remission, was noted. The examiner questioned the Veteran's reports of having delusions in his youth, opining that it would have been seen and documented sooner than 1995 if such issues were present. It was noted that the examiner questions the Veteran's report of having such symptoms in his youth and in the military as the diagnosis did not come until 1995 when Veteran required intensive treatment due to his significant mental health issues. The examiner opined that it is less likely than not that the Veteran's delusional disorder was incurred in or caused by the Veteran's military service, noting that the Veteran "appears to have had a psychotic break with a diagnosis of schizophrenia around '95 per records." The examiner then concluded that in the absence of persecutory delusions and active hallucinations, a diagnosis of delusional disorder is more appropriate at this time. In the April 2017 remand, the examiner was directed that they "must take into account the Veteran's lay statements related to in-service symptomology and should discuss the significance and credibility of those statements. Should the psychiatrist find those statements not probative in forming the opinion, the psychiatrist must explain why and provide an opinion as to the credibility of the statements." Here, the examiner did not discuss the Veteran's statements in any great detail and seemed to rely on the lack of contemporaneous documentation of symptoms. As such, the Board finds that the examiner did not comply with the April 2017 remand directives and, as such, the examination is inadequate. If the Board proceeds with final disposition of an appeal, and the remand order has not been complied with, the Board errs in failing to ensure compliance. Stegall, at 271. The Veteran's attorney argued in an October 2017 statement that the VA examination was inadequate. While the Board regrets additional delay in this case, the matter must be remanded for the above-mentioned reasons. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from January 2016 to the present. All records obtained must be associated with the claims file. 2. After, and only after completion of step one above, arrange for the Veteran to undergo a VA examination with an appropriate medical provider who has not previously examined the Veteran to determine the nature and ideology of the Veteran's acquired psychiatric disability. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his acquired psychiatric disability. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's acquired psychiatric disorder, to include schizophrenia and a depressive disorder, had its clinical onset during active service or is aggravated by or otherwise related to any service-connected disease, event, or injury. In arriving at any opinion, the examiner must consider the following lay statements made by the Veteran regarding his active duty service and opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran suffered from these or other delusions while on active duty: a. The Veteran reported that he served in the army from 1969 to 1972 and was stationed in Venice, Italy when he was injured in a church bombing and was presumed dead. The Veteran stated the government was trying to kill him because he knew government secrets. The Veteran stated that he was flown to a military camp from which he escaped and returned to the United States. See November 1994 examination for the Indiana Department of Family and Social Services Disability Determination Bureau. b. The Veteran "indicate[d] that he began to experience memory problems following his "nervous breakdown." See November 1994 examination for the Indiana Department of Family and Social Services Disability Determination Bureau. c. The Veteran reported that during service while stationed in Germany he traveled to Italy and "recalled a time in Naples, Italy, when he was with a friend who also thought he was a spy." He indicated that the reason for thinking this is because things would happen and he did not know how or why it happened. He reported strange things. See May 1995 Psychiatric Evaluation from the Center for Mental Health. e. The Veteran reported that while he was in the military, the CIA "planted chips" in his head. See October 2001 VA mental disorders examination. f. The Veteran stated that he was never diagnosed or treated for schizophrenia while in the army, but that he sought treatment in 1972 after he got out of the service. The Veteran stated that while he was in service "they told [him he] had a bug planted in his left ear" and that when he left service and would go by a radar, its soundwave would "catch [his] attention." The Veteran stated that the bug was implanted while he was in Germany, which was when his schizophrenic symptoms started. The Veteran stated that while in service in Italy, he could "pick up signs" while watching television and that he had been trained to do this. See October 2002 Decision Review Officer hearing transcript. The examiner must thoroughly review and address the October 2017 private medical opinion from Dr. T. F. All opinions provided for each of the disabilities examined must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records The appellant 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 (West 2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).