Citation Nr: 1756099 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-22 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1977 to March 1978. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In February 2015, the Board issued a decision in which it continued the denial of service connection for an acquired psychiatric disorder. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in October 2016 the Court issued a memorandum decision that vacated the February 2015 Board decision and remanded the claim of service connection for an acquired psychiatric disorder to the Board in order for it to readjudicate the claim on appeal. Upon receipt of the case from the Court, in July 2017 the Board remanded the matter to the RO for further development of the record. Following the issuance of a September 2017 supplemental statement of the case which continued the denial of the issue, the case was returned to the Board for its adjudication. The Veteran in an October 2017 correspondence indicated that he wished to revoke The American Legion as his representative, and further stated that he was aware this would result in him being unrepresented. The Board will thus further address this case with the understanding that the Veteran is pro se. 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 Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Pursuant to the Board's July 2017 remand, the RO was directed to forward the claims file to the VA examiner who issued the December 2014 addendum opinion, or to another qualified VA examiner if that individual was not available, in order to obtain addendum opinions regarding the etiology of the acquired psychiatric disorder. Specifically, the RO was to secure opinions regarding three distinct issues: first, whether the Veteran's acquired psychiatric disorder was attributable to his exposure to contaminated water in service while he was stationed at Camp Lejeune; second, whether the Veteran's noted shaving compulsion in service was a manifestation of an acquired psychiatric disorder he developed while in service; and three, whether the acquired psychiatric disorder was permanently worsened by any service-connected disabilities. In addition, the examiner was asked to summarize the available treatment records and provide a cohesive diagnosis of the Veteran's psychiatric disorder. Upon receipt of the case, the claims file in August 2017 was forwarded to the same VA psychologist who issued the December 2014 addendum opinion. With regards to the Camp Lejeune contaminated water exposure, the VA psychologist declined to offer an opinion finding it to be outside their expertise. As for whether the acquired psychiatric disorder was permanently worsened by a service-connected disability, the psychologist stated that it would be impossible to opine as to any connection without resorting to speculation. The psychologist noted inconsistencies in the Veteran's reporting regarding the manifestation of his anxiety attacks in service and thereafter, and then erroneously stated that the chest injury that the Veteran asserted caused his acquired psychiatric disorder was not service-connected. The Veteran's claim file was reviewed by an occupational and environmental medicine physician in August 2017 in order to provide an opinion as to the potential connection between the acquired psychiatric disorder and exposure to Camp Lejeune contaminated water. After reviewing the Veteran's medical history, the examiner opined that it was less likely than not that the acquired psychiatric disorder was attributable to exposure to Camp Lejeune contaminated water. In support thereof, the examiner referred to medical literature and studies which showed that neurobiological effects typically only developed after five or more years of exposure and manifested concurrently with or shortly after exposure. The examiner also noted that the Veteran did not exhibit any potential symptoms of his acquired psychiatric disorder while in service despite the documented shaving compulsion and the Veteran's assertions that it was an early manifestation of his acquired psychiatric disorder. Following these examinations the Veteran was afforded an examination with a VA physician in September 2017 in order to obtain an opinion regarding whether the acquired psychiatric disorder was permanently aggravated by the chest wall injury. After reviewing the claims file and interviewing the Veteran, the physician opined that it was at least as likely as not that the acquired psychiatric disorder was permanently aggravated by the chest wall injury. In support thereof, the physician noted the Veteran's history of reporting chest wall pain and found that only psychological issues would explain the many years of chest pain subsequent to the in-service injury as described by the Veteran. However, the physician also conceded that a psychiatric examination was necessary in order to properly evaluate the Veteran's diagnoses. Rather than afford the Veteran a full psychiatric examination, the RO forwarded the claims file back to the VA psychologist who issued the December 2014 and August 2017 addendum opinions. That psychologist opined that it was less likely than not that the acquired psychiatric disorder was permanently aggravated by a service-connected disability. They did not offer any rationale for this opinion. Prior to issuing a decision, the RO afforded the Veteran one more examination, this time an evaluation of his separate skin diseases. That examination confirmed the diagnosis of pseudofolliculitis barbae for which the Veteran is already service-connected. The examiner did not offer any opinion relevant to the issue of the likely etiology of the acquired psychiatric disorder. The Board first notes that the RO failed to properly diagnose the Veteran's acquired psychiatric disorder as it requested, which would by itself warrant remand in order to have the AMC comply with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with the remand order). That being said, the negative opinions obtained by the RO do not accord with the weight of the evidence in the claims file, while the physician's September 2017 opinion does not appear to be sufficient. In his August 2017 opinion, the VA psychologist who issued the December 2014 addendum opinion stated that the chest wall injury was not service-connected, and that psychologist simply did not offer any rationale whatsoever for the September 2017 opinion. As for the August 2017 examiner who opined regarding the Camp Lejeune contaminated water exposure, they erroneously stated that the Veteran did not exhibit any potential symptoms of his acquired psychiatric disorder in service. Finally, the physician who offered the positive opinion in September 2017 conceded that they did not have the expertise to opine as to the possible connection between the in-service chest wall injury and the Veteran's acquired psychiatric disorder. In short, the RO failed to provide a proper diagnosis for the Veteran's acquired psychiatric disorder, and failed to obtain opinions sufficiently responsive to the queries set forth by the Board in its Remand directives. This case must be remanded back to the RO for it to carry out the original remand instructions, copied below. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran's claims file a qualified VA psychiatrist or psychologist for the purpose of providing an opinion as to the nature and etiology of the Veteran's acquired psychiatric disorder. The electronic claims file and any other information deemed pertinent must be provided to and reviewed by the examiner in conjunction with the opinion. If, upon receipt of the claims file and a copy of this remand, the examiner determines that an examination is needed in order to provide an opinion responsive to the following issues, then the examiner must also carry out any and all special studies or tests, including psychological testing and evaluation, necessary for proper evaluation. The Board leaves the determination of whether an examination is necessary to the discretion of the examiner. The examiner must first provide diagnoses for all psychiatric disorder found. The examiner must integrate the previous psychiatric findings and diagnoses with the most current treatment records to obtain a true picture of the nature of the Veteran's psychiatric status. In evaluating the diagnoses for the Veteran's acquired psychiatric disorder, the examiner should consider the following prior diagnoses as reflected in the Veteran's treatment history with VA as well as private treatment providers: dysthymic reaction; depression; personality disorder not otherwise specified; schizophrenia, paranoid type; anxiety state; paranoid personality by history; depressive disorder and psychotic disorder, both not otherwise specified; and depression and adjustment disorder. Thereafter, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the acquired psychiatric disorder is related to service, to specifically include as due to exposure to contaminated water during the Veteran's period of service when he was stationed at Camp Lejeune. The examiner is invited to consider, and comment upon as necessary, the statement of the February 2012 VA ophthalmologist who administered an ophthalmology examination for the Veteran and whom commented that studies showed that exposure to Camp Lejeune contaminated water could contribute to the development of neurobiological effects. In addition, the examiner is specifically requested to consider the Veteran's documented shaving compulsion while in service and opine as to whether it was a manifestation of an acquired psychiatric disorder that the Veteran developed prior to his discharge from service. The examiner is also requested to provide an opinion as to whether it is at least as likely as not that the acquired psychiatric disorder was caused or aggravated by one or more service-connected disabilities (listed in a March 2017 rating decision) or a combination therefrom. The examiner should note that the term "aggravated by" refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the acquired psychiatric disorder, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. In providing this opinion, the examiner must specifically address the Veteran's lay contentions regarding the development of his acquired psychiatric disorder in relation to the manifestation of his service-connected disabilities. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. 2. After completing the above action the RO must readjudicate the issue on appeal. If the benefit remains denied, the RO must provide the Veteran and his representative with a supplemental statement of the case, and provide an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. C. MACKENZIE 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) (2017).