Citation Nr: 1804241 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-24 873A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), claimed as being due to military sexual trauma, and alternatively, as a pre-existing disability that was aggravated by his active duty service. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from January 1974 through May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran's testimony was received during a September 2015 video conference hearing. A transcript of that testimony is associated with the claim file. In an April 2016 decision and remand, the Board determined that new and additional evidence was received and reopened the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD. The Board remanded that issue to the AOJ for further development. The AOJ has undertaken efforts to perform the ordered development. The matter now returns to the Board for de novo review. Although the Veteran asserts expressly entitlement to service connection for an acquired psychiatric disorder, the evidence in the record suggests that the symptoms and manifestations reported by him may be residuals associated with a TBI that pre-existed his enlistment into active duty service. Under the circumstances, the Board has expanded the Veteran's appeal to include consideration of possible theories for service connection for TBI residuals. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The evidence in the record suggests that the Veteran's psychosocial history includes significant pre-service, in-service, and post-service events. In that regard, the Veteran has asserted repeatedly during treatment and multiple VA examinations that he was abused mentally, physically, and sexually as a child by his father. He reports also that he sustained a head injury after he was struck by a car when he was eight years old. Indeed, a statement from the Veteran's mother attests to the event and recalls that the Veteran demonstrated various behavioral changes and decreased cognitive function and school performance after the accident. In relation to his claim for service connection for PTSD specifically, the Veteran asserts that he was assaulted and threatened at gunpoint by another serviceman in a personal dispute. According to the Veteran, he reported the incident and sought to press charges, but was approached by the serviceman's friends who threatened and physically and sexually assaulted him. The post-service treatment records also reflect that the Veteran experienced multiple post-service stressors that included marital problems with instances of domestic violence, financial strain and periods of homelessness, and legal problems that included time in jail. The Veteran has also asserted that he sustained a second head injury in 1997 after he fell 70 feet from a tree while taking photographs. In conjunction with the above, the record reflects that the Veteran has received ongoing mental health treatment, with periods of in-patient hospitalization, since August 1975 for various symptoms that include anger, anxiety, depression, paranoia, aggression with violent behavior, detachment, suspiciousness and distrust of others, poor insight and judgment, delusional thought, suicidality, and difficulties in his interpersonal relationships. He has asserted that he has held 60 to 70 different jobs and was never able to maintain any one job for more than three months. Those records also reflect that the Veteran has received varying and differing diagnoses over the years. Records for VA mental health treatment and private mental health treatment received by the Veteran at Camarillo State Hospital from 1975 through 1976 reflect diagnoses of antisocial personality disorder, explosive personality disorder, and schizophrenia paranoid type. Personality disorder diagnoses are repeated in private evaluations conducted by Dr. J.L.C. and Dr. W.L.S. during the 1980s. Similar diagnoses are expressed in August 1984 treatment records from Coastal Recovery Center and in a January 1985 revaluation conducted by Dr. R.S. for the Social Security Administration. During psychiatric evaluations conducted by Dr. J.M.A. at La Crosse County Human Services Department from 1989 through 1990 document diagnoses of multiple personality disorder, dissociative disorder, and personality disorder. Records for subsequent VA and private treatment through the present document differing diagnoses of PTSD, major depressive disorder, anxiety disorder, cognitive problems due to TBI, and the aforementioned personality disorders. VA examinations conducted in 1990, 1991, 2009, 2012, and 2017 also revealed differing diagnoses of personality disorder, adjustment disorder, major depressive disorder, PTSD, cognitive disorder, TBI, and substance abuse. The VA examinations conducted to date offer conflicting opinions as to whether the Veteran's disorders were caused or aggravated by his active duty service. Pursuant to the Board's previous remand, the Veteran was afforded a VA psychiatric examination in February 2017, during which the VA examiner rendered diagnoses of personality disorder, PTSD, depression, substance abuse, and TBI. The examiner opined that the Veteran's primary diagnosis is personality disorder and that the personality disorder arose in response to his abusive childhood, genetic factors, and possibly his childhood head injury. Although the examiner opined that the personality disorder was not caused or aggravated by his active duty service, he gave no explanation or rationale for that opinion. In relation to the Veteran's PTSD, the examiner opined also that the evidence did not unmistakably show that the PTSD existed prior to the Veteran's enlistment into service. Again, the examiner gave no rationale or explanation for his conclusion. Regarding depression, although the examiner acknowledged that the Veteran was treated for behavioral problems only months after he was separated from service, the examiner opined that such treatment was due to the Veteran's substance abuse. Again, the examiner offered no explanation for that opinion. Concerning the Veteran's TBI, the examiner opined that there was no evidence that the Veteran's neurocognitive disorder was connected in any way to his active duty service. To the extent that the Veteran's TBI pre-existed his enlistment into service, however, the examiner provided no opinion as to whether the Veteran's TBI was aggravated beyond its natural progression during his active duty service. In the absence of satisfactory rationale for the opinions given by the examiner, his February 2017 opinions are incomplete. Given the complexity of the Veteran's psychosocial and mental health treatment history, and also, the deficiencies in the February 2017 VA examiner's findings and conclusions, the Veteran should be afforded a new VA examination to determine the nature and etiology of the Veteran's complaints. 38 C.F.R. § 3.159 (c)(4) (2017). Also, the Veteran should be asked to identify any other private and/or VA treatment providers who have rendered treatment for his psychiatric disorder and/or TBI since January 2017. VA must then make efforts to obtain the records for the treatment identified by the Veteran. 38 C.F.R. § 3.159 (2017). 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. The Veteran should be asked whether he has additional evidence pertaining to his acquired psychiatric disorder/TBI, and if so, he should be provided assistance in obtaining it. Relevant VA treatment records dated from January 2017 through the present should be associated with the record. If such records are not available, the record should be so documented. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder and/or TBI residuals. The claims file must be made available to the examiner, and the examiner must specify in the examination report that the record was reviewed. All necessary tests and studies should be conducted. The examiner should provide opinions as to each of the following questions: (a) does the evidence clearly and unmistakably (i.e., undebatably) show that the Veteran had a traumatic brain injury prior to his enlistment into active duty service? If so, does the evidence clearly and unmistakably show that the Veteran's pre-service traumatic brain injury was not aggravated beyond its natural progression during his active duty service? (b) is it at least as likely as not (at least a 50 percent probability) that the Veteran sustained a TBI during his active duty service? If so, what are the residuals that are associated with the Veteran's TBI? (c) does the Veteran have a mental health diagnosis? If so, provide the diagnosis and provide your reasons as to why you do and do not concur with the earlier mental health diagnoses contained in the record. Also, for each mental health diagnosis given by you, provide an opinion as to whether it is at least as likely as not that the diagnosed mental health disorder was began during active duty service, or, resulted from an in-service injury or event? (d) is it at least as likely as not that the Veteran had a psychosis within the period from May 1975 through May 1976? The examiner's opinions must be accompanied by a complete and detailed rationale with reference to supporting evidence in the record and supporting medical principles. If the examiner is unable to reach the opinions being sought without resort to speculation, he or she should explain the reasons for that inability and comment on whether further tests, evidence, or information would be useful in rendering the opinion being sought. Findings from the examination and the examiner's opinions and rationale should be expressed in a typewritten report that is associated with the record. 3. Perform any other development necessitated by the evidence. 4. After completion of the above development, the issues on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL LANE 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).