Citation Nr: 1801356 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-05 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from November 1964 to December 1968, including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In April 2013, the Veteran testified before a Veteran's Law Judge (VLJ) at a video conference hearing. A transcript of the hearing has been associated with the claims file. In October 2016, VA notified the Veteran that he was entitled to another hearing in light of the fact that the VLJ who had conducted his video conference hearing was no longer with the Board. See 38 U.S.C. § 7107(c) (West 2012). As he did not respond within 30 days of the notification, it is presumed that he did not want another hearing. The Board has previously remanded this claim twice, in February 2015 and May 2017, for additional development. The May 2017 remand requested an addendum medical opinion, which was provided in June 2017. As will be discussed below, the June 2017 addendum opinion is inadequate as it did not fully address the issues in the Board's May 2017 remand directives. Thus, the Board is not satisfied that there was substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets further delay, a remand is required to obtain an addendum opinion that complies with the directives of the May 2017 Board remand. Stegall, 11 Vet. App. at 271. The Veteran filed his service connection claim for PTSD in November 2010. In a March 2011 VA examination, the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood, secondary to his wife's health condition. In December 2011, the Veteran submitted a letter from a private physician who diagnosed him with PTSD related to his military service. In a September 2015 VA examination, a VA examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD or any other psychiatric disorder. In the May 2017 remand, the Board directed the RO to obtain an addendum opinion that specifically addressed the Veteran's prior diagnoses. Pursuant to the May 2017 Board directives, the VA examiner who conducted the September 2015 examination was asked to provide an addendum opinion to attempt to reconcile all prior diagnoses of an acquired psychiatric disorder during the appeal period with her examination findings. In the June 2017 addendum opinion, the examiner stated that in the absence of a face to face examination or other compelling data to suggest that the Veteran's symptoms are other than what he reported at the time of his 2015 VA examination, it remained the examiner's opinion that the Veteran did not met the diagnostic criteria (DSM-IV or DSM-5) for PTSD or other mental disorder. This change in diagnosis the examiner attributed to a "resolution of symptoms." However, the opinion did not address the Board's directives regarding the nature and etiology of the prior diagnoses. All psychiatric conditions diagnosed during the pendency of the claim must be addressed, even if not currently present on examination or deemed resolved, prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, on remand, a new VA examination and opinion is required to address the etiology of any psychiatric diagnosis rendered during the pendency of the appeal, including adjustment disorder and PTSD, even if the VA examiner determines that the condition has resolved. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed psychiatric disability, to include PTSD, by a VA psychologist or psychiatrist, who has not previously examined him. The entire claims file, to include a copy of this REMAND, must be provided to the examiner. The examiner must address the nature and etiology of all psychiatric disorders diagnosed during the pendency of the appeal. Any necessary tests, including psychiatric testing should be obtained. The examiner must reconcile the September 2015 and June 2017 VA opinions with his or her own opinion. The examiner should provide the following: (a) Whether the Veteran has a current diagnosis of any acquired psychiatric disability, or, if not, whether any psychiatric disability diagnosed since November 2010 has since resolved or was misdiagnosed. (b) Whether it is at least as likely as not (50 percent probability or greater) that any psychiatric disability diagnosed during the pendency of the appeal, even if currently resolved, is caused by or otherwise related to the Veteran's active duty service. The examiner should specifically address the March 2011 diagnosis of adjustment disorder with mixed anxiety and depressed mood, as well as the December 2011 letter from the Veteran's private physician that provided a diagnosis of PTSD related to service. In this regard, the examiner should address whether the Veteran meets a diagnosis for PTSD under the DSM-IV diagnostic criteria. NOTE: The term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should set forth a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. 2. After ensuring compliance with the above, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran 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. _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).