Citation Nr: 1756566 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-22 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: A. Brooke Thomas, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1983 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs(VA) Regional Offices (ROs) in Montgomery, Alabama, which originally had jurisdiction over this appeal, and Jackson, Mississippi, to which jurisdiction over this case was transferred and which forwarded the appeal to the Board. In October 2014, the Veteran testified before a Decision Review Officer (DRO) at the, Mississippi, RO. In January 2016, he testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). Written transcripts of these hearings have been prepared and incorporated into the evidence of record. In July 2016, the Board denied the Veteran's claim for an acquired psychiatric disorder, to include PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Partial Remand. The Board's decision was vacated and the Veteran's claim was remanded to the Board. The Order called for the claim to be vacated and remanded in that none of the VA mental health examinations of record adequately reconciled the opinions provided with the VA treatment records which showed ongoing treatment for PTSD since shortly after service. Additional examination was to be conducted. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Additional development is needed prior to the final adjudication of the claim on appeal. Since shortly after service separation in 2004, the Veteran has been treated for psychiatric symptoms. There are various mental health diagnoses of record, to include depression, anxiety, and PTSD. VA examinations in June 2012 and August 2015 did not find that the Veteran met the criteria for a diagnosis of PTSD. These examiners did not address the numerous instances in the years post service where PTSD was diagnosed. Moreover, neither examiner adequately discussed whether any other of the diagnosed psychiatric conditions was attributable to service. Accordingly, and given the other development being accomplished (as noted below), the Board finds that further medical information and opinion, based on full consideration of the Veteran's documented medical history and assertions, and supported by a thorough, clearly-stated rationale-are needed to resolve the claim for service connection for an acquired psychiatric disorder, to include PTSD. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his mental health symptoms, on appeal. With any necessary authorization from the Veteran, the AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA mental disorders examination, by a psychiatrist or psychologist, to obtain information as to the nature and etiology of the claimed acquired psychiatric disorder, to include PTSD. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran's documented history and lay assertions. All indicated tests and studies (to include psychological testing, if deemed warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and consideration of the entire record (to include any psychological testing results), the examiner should identify all current psychiatric diagnosis/es. If the examiner determines that the Veteran does not meet the diagnostic criteria for PTSD, or any other acquired psychiatric disorder, he or she should reconcile such findings with the various instances in the claim file where PTSD, depression, anxiety, and substance abuse were diagnosed and the beginning of mental health treatment for PTSD since beginning shortly after service discharge. If PTSD is diagnosed, the examiner must explain how the diagnostic criteria are met, to include identifying the specific stressor(s) underlying the diagnosis and commenting upon the link between the current symptomatology and the Veteran's stressor(s). In doing so, the examiner should specifically address whether the Veteran's identified stressor(s) is/are related to a fear of hostile military or terrorist activity; whether the identified stressor(s) is/are adequate to support a diagnosis of PTSD; and which symptoms are related to the identified stressor(s). If an acquired psychiatric disorder other than PTSD is diagnosed, for each such diagnosis, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) had its onset during service; for a psychosis, was manifested to a compensable degree within the first post-service year; or (c) is otherwise medically related to, his active military service, to include his exposure to herbicides therein. In addressing the above, the examiner must consider and discuss all relevant medical evidence and lay assertions, to include competent assertions as to in-service combat exposure and as to onset and continuity of symptoms. Once again, the examiner must reconcile his/her findings with the previous diagnoses of record and the beginning of mental health treatment starting shortly after service discharge. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. The claim should then be readjudicated. If the claim remains denied, a supplemental statement of the case should be sent to the Veteran and his representative and they should be afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration, if in order. The appellant 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 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). _________________________________________________ BARBARA B. COPELAND 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).