Citation Nr: 1753091 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-09 589A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and adjustment disorder, mixed with anxiety and depressed mood. REPRESENTATION Veteran represented by: Leann Baker, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his fiancée ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to September 1966, and from July 1967 to August 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2011 rating decision in which the RO, inter alia, denied service connection for PTSD. In December 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2013. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2013. In June 2016, the Veteran and his fiancée testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2016, the Board remanded claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development of the evidence. After accomplishing further action, the AMC continued to deny the service connection claim on appeal (as reflected in a September 2017 supplemental SOC (SSOC)) and returned that matter to the Board for further consideration. With respect to the characterization of the claim on appeal, the Board notes that, while the Veteran's claim has only been adjudicated as one for service connection for PTSD, given the various diagnoses of acquired psychiatric disorders of record, including an adjustment disorder mixed with anxiety and depressed mood, the issue has been expanded and re-characterized, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the matters on appeal are, again, being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran attributes his psychiatric disability to his military service in Vietnam. In particular, he asserts that during his military service he shipped body bags to the United States and witnessed rocket attacks and his fellow servicemen die in explosions. See, e.g., June 2016 Board hearing transcript. The RO has conceded that the Veteran served in the Republic of Vietnam. See September 2011 deferred rating decision. The Veteran's service treatment records (STRs) indicate that he had various behavior issues during his military service, such as physical altercations, chronic tardiness, and substance use; diagnosed with acute anxiety; and that he sought therapy related to "personal problems." See, e.g., STRs dated in August 1969, May 1972, and June 1972. November 2014 VA treatment records and a November 2011 examination report include psychiatric diagnoses; specifically PTSD, adjustment disorder with mixed with anxiety and depressed mood. In September 2016, the Board remanded the Veteran's claim to afford him an examination to obtain information as to the nature and etiology of all diagnosed psychiatric disorders. Specifically, the VA examiner was requested to identity all acquired psychiatric diagnoses since the date of the Veteran's claim in January 2010, even if any such disorder had resolved at the time of the examination) and provide an opinion as to the etiology. In July 2017, the Veteran was afforded an examination. The VA examiner found that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under criteria of the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Rather, the examiner diagnosed unspecified other substance-related disorder and opined that it was not related to the Veteran's military service. The VA examiner reasoned that the Veteran's mental health issues are due to his prior drug addiction and his poor choices due to his personality traits. The VA examiner cited the Veteran's drug problems since his military discharge and noted that the Veteran faced legal problems while having stayed in Vietnam as a civilian after military discharge. The examiner also stated that "regarding conflicting medical evidence, this examiner will have to resort to speculation regarding what elements other examiners took into consideration when concluding the [V]eteran was suffering from other mental health diagnoses." To this end, the July 2017 VA examiner did not address the other acquired psychiatric diagnoses of record since the date of the Veteran's claim, to include PTSD and adjustment disorder with mixed with anxiety and depressed mood. Furthermore, the examiner's opinion did not take into account Veteran's STRs that document a diagnosis of acute anxiety or that he had behavior issues during his military service. Under these circumstances, the Board finds that further action to obtain an appropriate medical etiology opinions -based on full consideration of the Veteran's documented history and assertions, and supported by complete, clearly-stated rationale-is required. See Stegall, supra. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination or obtain an opinion when developing a claim, it must provide or obtain one adequate for the determination being made). Prior to accomplishing action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the electronic claims file (in VBMS and Virtual VA) all outstanding, pertinent records, to include records of VA evaluation and/or treatment of the Veteran dated since November 2016. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly, as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1) (West 2012); but see 38 U.S.C.A. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated since November 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his agent a letter requesting that the Veteran provide sufficient information, and if necessary, current authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available record and/or responses from each contacted entity are associated with the claims file, arrange to obtain from a psychiatrist or psychologist. an addendum opinion addressing of the Veteran's acquired psychiatric disorders diagnoses of record other than PTSD-in particular, adjustment disorder, mixed with anxiety, and depressed mood Only arrange for the Veteran to undergo further examination, by a psychiatrist or psychologist, if deemed necessary in the judgment of the psychiatrist or psychologist designated to provide the opinion. The entire electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. For each diagnosed acquired psychiatric disability other than PTSD of record at some pertinent to the current claim-to particularly include adjustment disorder, mixed with anxiety and depressed mood-even if now resolved or asymptomatic-the psychiatrist or psychologist should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability is medically related to service, to include claimed in-service stressful experiences and/or symptoms, and noted behavior changes, therein. In addressing the above, the psychiatrist or psychologist must consider and discuss all pertinent medical and other objective evidence, to include the Veteran's STRs indicating his behavioral problems, an anxiety diagnosis, and that he sought mental health treatment during service. See, e.g., STRs dated in August 1969, May 1972, and June 1972. The psychiatrist or psychologist must also consider and discuss all lay assertions, to include the Veteran's competent assertions as the nature, onset and continuity of symptoms. If the Veteran's assertions in any regard are discounted, the psychiatrist or psychologist should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal, in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA (Legacy Content Manager)) file(s) since the last adjudication), and legal authority. 7. If any benefit(s)t sought on appeal remain(s) denied, furnish to the Veteran and his agent a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).