Citation Nr: 1803731 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-16 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), an anxiety disorder not otherwise specified (NOS), a panic disorder with agoraphobia, and a depressive disorder NOS. ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to December 1982. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction subsequently was transferred to the RO in Montgomery, Alabama. In May 2015 and May 2017, the Board remanded the above-named issue for further evidentiary development. The requested development has been substantially completed, and the matter is properly before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the delay, but this claim must again be remanded for further development, as specified below. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. The Veteran asserts that his service aboard the U.S.S. Detroit caused him to suffer PTSD because he feared for his life while serving on a floating bomb. The Veteran also referenced being at sea when two USS Nimitz aircraft were fired upon by Libyan aircraft. By way of history, on his service separation examination in December 1982 the Veteran reported excessive anxiety and some mild depression due to concerns about his mother's health. Post service, VA treatment records contain diagnoses of anxiety disorder not otherwise specified (NOS), panic disorder with agoraphobia, and depressive disorder NOS. See VA treatment records, dated April 24, 2008, May 29, 2008, July 17, 2008, September 11, 2008, October 30, 2008, January 9, 2009, January 23, 2009, and March 6, 2009. The Veteran was afforded a VA PTSD examination in March 2016. The examiner diagnosed an unspecified depressive disorder. The examiner found that the Veteran's current depression could not be linked to military service because it was more likely that the depression was associated with his heart disease and his mother's death. The examiner also indicated that obesity was a possible cause of depression. Because the 2016 VA examiner did not acknowledge or address the Veteran's anxiety diagnosis, the case was remanded for an additional medical opinion. The Veteran was afforded another VA examination in June 2017. The examiner found that the Veteran did not meet the criteria for PTSD (or any other psychiatric disorder) under either the DSM-IV or the DSM-V criteria. The examiner stated that he could not evaluate the validity of any past diagnoses. He stated that it was certainly likely than in the past the Veteran met the criterion for a depressive disorder as he had a history of significant heart disease requiring surgery. The examiner went on to state that the Veteran did "not currently meet criteria for either PTSD or Major Depressive Disorder is all that I can validly speak to concerning this Veteran." The examiner did not address the Veteran's prior diagnosis of an anxiety disorder. In essence, the examiner indicated that he was unable to provide the requested opinion; however, no explanation was provided. If a VA examiner concludes that an opinion cannot be provided without resort to mere speculation, this must be supported by a specific explanation that discusses this evidence, and discusses what data or information is missing that would be necessary to render the opinion. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). As such, remand is required in order to obtain a sufficient medical opinion. Further, a January 23, 2009 VA treatment note shows that the Veteran had brought in a decision from the Social Security Administration (SSA) which found him to be disabled due to anxiety and depression. On remand, the RO should request any available SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to VA claim); Finally, as the case must be remanded the Veteran's updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Add to the claims file all outstanding VA treatment records dated since May 2017. 2. Request from the SSA complete copies of any disability determination it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision. If these records are not available, a negative reply is required. 3. Thereafter, schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the nature and etiology of any currently diagnosed psychiatric disorders. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examiner must address the following: a) Offer an opinion on whether the Veteran meets the DSM-IV or DSM-V criteria for a diagnosis of PTSD. The examiner is instructed to consider the Veteran's assertion that he feared for his life while serving on a floating bomb and that he referenced being at sea when two USS Nimitz aircraft were fired upon by Libyan aircraft. b) If the Veteran meets DSM-IV or DSM-V criteria for a diagnosis of PTSD, offer an opinion whether it is at least as likely as not (probability approximately 50 percent), that PTSD is related to the above stressor and/or any other in-service stressor. c) If the Veteran meets the DSM-IV or DSM-V criteria for any psychiatric diagnoses other than PTSD, offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the psychiatric disorder had its clinical onset during active service or is related to any incident of service, to include the above stressor and/or any other in-service stressor, and/or the Veteran's reported excessive anxiety and mild depression due to concerns about his mother's health on his separation examination in December 1982. With respect to c), an opinion should be rendered for each psychiatric condition with which the Veteran is currently diagnosed, as well as for the previous diagnoses of an anxiety disorder NOS, a panic disorder with agoraphobia, and a depressive disorder NOS. See VA treatment records, dated April 24, 2008, May 29, 2008, July 17, 2008, September 11, 2008, October 30, 2008, January 9, 2009, January 23, 2009, and March 6, 2009. The examiner is asked to provide a rationale for the opinions rendered. If the examiner concludes that an opinion cannot be provided without resort to mere speculation, this must be supported by a specific explanation that discusses this evidence, and discusses what data or information is missing that would be necessary to render the opinion. 4. Finally, after completing any other development that may be indicated, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 (2012). _________________________________________________ P. M. DILORENZO 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).