Citation Nr: 1802617 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-30 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and major depressive disorder (MDD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claim was brought before the Board in August 2017 and was remanded for further development. 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 appellant if further action is required. REMAND Although the Board sincerely regrets the delay, another remand is warranted prior to further disposition of the claim. In a March 2014 VA treatment record, the Veteran reported that during service, he was in the hospital for 3 months after injuring his shoulder and that this prevented him from serving in Vietnam. He stated that when other service members came back from Vietnam injured and he saw them at the hospital where he was being treated, it upset him greatly and caused him to feel guilt for not being with his friends in Vietnam. He stated that when he saw young veterans now with missing limbs, it reactivated those feelings. He maintained that while he was working and raising a family, he did not dwell on it because of the distractions. However, now that he has been retired for 8 years, he reported that he now had nightmares and intrusive thoughts about seeing other patients in the military hospital screaming for help in the middle of the night. In October 2017, the Veteran was provided a VA examination. The examiner diagnosed the Veteran with unspecified anxiety disorder. The Veteran told the examiner that during his time in service he injured his left shoulder while performing his duties on his truck. He subsequently had to receive surgery for his torn ligaments and dislocation of the left shoulder. He spent several months in the hospital, during which he witnessed soldiers return from Vietnam severely injured. The Veteran stated that hearing their cries and moans caused him to feel extreme guilt for not being able to go with his unit to Vietnam. The Veteran stated that after discharge from service, he would suffer from irritability and have nightmares whenever he was reminded of the soldiers in the hospital. He stated going to the hospital after his service would cause him to have anxiety and panic attacks because of the memories from his time in the hospital during service. The Veteran denied any psychiatric history until visiting the VA in 2014 after his friends notified him he could seek care there. He reported being in denial about anything being wrong with him, and that he could not afford to see a psychiatrist anyway. The examiner provided that she was not able to give an opinion as to whether the Veteran's psychiatric disorder was at least as likely as not manifested in, caused by, or otherwise etiologically related to his period of service because there are no records documenting or providing a diagnosis of a mental disorder until 2014, which was fifty years after service. The examiner further explained that due to this gap in years, any opinion would resort to mere speculation as to a link between the Veteran's mental disorder and military service. The Board notes that if an examiner is unable to offer a requested opinion, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). While the October 2017 VA examiner provided a reason for why any opinion would resort to mere speculation as to a link between the Veteran's mental disorder and military service, she based this reason on the lack of medical records for 50 years post-service. However, it is unclear whether the examiner considered the Veteran's lay statements regarding his mental disorder. Specifically, the Veteran reported that he did not seek treatment until 2014 because he had been in denial about anything being wrong with him, and that he could not afford to see a psychiatrist anyway. The Veteran has also stated that while he was working and raising a family, he did not dwell on his in-service experiences because of the distractions of working and family life. Therefore, the Board finds that a clarification opinion should be obtained on remand. 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. Schedule the Veteran for a VA examination with an appropriate examiner other than the October 2017 VA examiner, if possible, to determine the nature and etiology of his claimed acquired psychiatric disorder, to include anxiety and MDD. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to the following: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's acquired psychiatric disorder, to include anxiety and MDD, was manifested in, caused by or is otherwise etiologically related to his period of service. A complete rationale should be provided for the medical opinion. In rendering the opinion, the examiner must consider the Veteran's lay statements regarding onset and continuity of his disability, including the Veteran's reports that he did not seek treatment until 2014 because he had been in denial about anything being wrong with him, and that he could not afford to see a psychiatrist anyway, and the Veteran's statements that while he was working and raising a family, he did not dwell on his in-service experiences because of the distractions of working and family life. If the examiner is unable to offer a requested opinion, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After any additional development deemed warranted, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. 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 ( 2012). _________________________________________________ JENNIFER HWA 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).