Citation Nr: 1804306 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), depressive disorder NOS, panic disorder with agoraphobia, bipolar disorder and alcohol dependence. REPRESENTATION Appellant represented by: Jan Dils, Attorney ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1981 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in March 2012 and July 2012 which denied entitlement to service connection for depressive disorder NOS with alcohol dependence (claimed as PTSD). The Veteran's August 2010 petition to reopen the claim of service connection for an acquired psychiatric condition identified that the Veteran was seeking benefits for "PTSD, depression mood swings, sleep loss, uncontrolled anger, bipolar disorder, isolation." The Court of Appeals for Veterans Claims has held that a Veteran's claim is not limited to a particular psychiatric diagnosis, but must rather be considered a claim for any mental disability that is reasonably encompassed in light of the given evidence. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, the Court found that a Veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that may be named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's overall psychiatric symptoms. Therefore, the Board will analyze the Veteran's current claim under this framework. The Veteran requested a personal hearing before the Board in March 2014. In November 2016, however, he withdrew that request in writing. Therefore, the Board will proceed with the appeal. 38 C.F.R. § 20.704(e) (2017). This appeal was previously before the Board in March 2017. At that time, the Board found new and material evidence had been submitted sufficient to reopen the previously denied claim. The Board found it necessary to then remand the case for further evidentiary development to ensure compliance with due process requirements. Among other requested development, the March 2017 remand instructed a VA examiner to provide a comprehensive diagnosis of all current mental health disorders, including a determination as to whether the Veteran currently had PTSD, depressive disorder, anxiety disorder, and/or a substance abuse disorder. The examiner was then requested to indicate "With regard to claimed depressive or anxiety disorder, or any other generalized psychiatric condition (other than substance abuse), indicate whether this disorder clearly and unmistakably pre-existed military service." Board remand, March 2017. In this instance, the examiner stated that the Veteran "does not meet diagnostic criteria for PTSD or for any other psychiatric condition" beyond alcohol dependence. VA examination, April 2017. The examiner, therefore, did not continue with further analysis to render an opinion as to whether any acquired psychiatric condition pre-dated the Veteran's naval service. However, the Board finds that this remand instruction was sequential in nature. That is, the request regarding an opinion as to time of onset was predicated on the examiner's finding of a current diagnosis for any such condition listed in the previous instruction paragraphs. Ultimately, in the absence of a finding of a current psychiatric condition other than substance abuse, the examiner was not expected to render an opinion about such condition's potential onset. Thus, the Board finds this to be substantial compliance with the prior remand directives, and it is now appropriate for the Board to proceed with appellate review. Stegall v. West, 11 Vet. App. 268 (1998). However, as will be discussed in full below, the Veteran has submitted additional evidence now requiring another remand on other grounds. Although the Board sincerely regrets the further delay, it is VA's duty to assist the Veteran in obtaining such evidence to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In April 2017, subsequent to the Board's prior remand in this case, the Veteran's attorney submitted an award letter from the Social Security Administration (SSA) on the Veteran's behalf. This notice letter indicates that as of December 1, 2016, during the pendency of this appeal, the Veteran became disabled under SSA rules. No further records from the SSA are included in the claims file. The notice letter does not state upon which disabilities the SSA determination was based, so the Board is unable to determine that the medical records from SSA are, or are not relevant to the matter currently before the Board. Under these circumstances, where SSA disability has not been disassociated from the claimed disabilities before VA and associated federally held medical records are potentially relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documents upon which that decision was based. 38 U.S.C. § 5103A(c); see Golz v. Shinseki, 590 F.3d 1317 (2010). The Board further finds that if the records obtained from SSA are reflective of a current acquired psychiatric disability other than alcohol or substance abuse, then a new VA opinion is necessary to address the medical relationship, if any, between that diagnosis and the Veteran's naval service. Similarly, the Board finds that a new medical opinion is necessary as the prior VA medical opinion in November 2011 is inadequate in that the examiner diagnosed depressive disorder NOS and offered the opinion that it was "logical" that the Veteran would have symptoms of depression and anxiety immediately before discharge from service due to his belief that he was being wrongly discharged from the military. However, the examiner then stated that the Veteran's depressive symptoms seem secondary to his chronic substance dependence issues and thus that the claimed condition is less likely than not incurred in or caused by an in-service event. The Board does not find that the examiner provided an adequate supporting rationale for this determination, and her statements seem to be somewhat contradictory in nature. Clarification is necessary from a medical professional. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, given the deficiency described above in the November 2011 VA examination report, the Board finds that a new medical opinion with an adequate supporting rationale is required to decide the Veteran's claim. Accordingly, the case is REMANDED for the following actions: 1. Obtain any recent VA mental health treatment records not currently associated with the claims file. 2. Contact the Social Security Administration to obtain and associate with the claims file all medical records pertinent to the Veteran's award of SSA disability benefits. All attempts to obtain these records, including any negative replies, should be documented in the claims file. 3. Return the claims file to the VA psychologist performing the most recent VA examination, if available, for an addendum opinion. If that examiner is unavailable, the claims file should be sent to another VA medical professional of sufficient expertise to offer an addendum opinion regarding the Veteran's mental health condition(s). The Veteran need not be personally examined again, unless the examiner determines that such examination is necessary. The examiner is asked to review the claims file, with particular attention to the March 2012 private treatment record by Dr. MP, the April 2017 and November 2011 VA opinions, and any additional medical records obtained from the Social Security Administration pursuant to this remand. The examiner is then asked to address each of the following: a. Please comment on the medical reasoning for the April 2017 VA examination determination that the Veteran does not meet the diagnostic criteria for major depressive disorder, panic disorder with agoraphobia, or bipolar disorder as diagnosed by the private provider in March 2012, or depressive disorder NOS as diagnosed by the November 2011 VA examiner. If this medical opinion is offered by a practitioner other than the April 2017 examiner, and your findings differ from that examiner, please discuss the medical reasoning for the different conclusion you reach in terms of diagnosis. If additional psychiatric diagnoses are raised in any medical evidence obtained from the Social Security Administration in conjunction with this remand, please also address any difference in those diagnoses and your own findings for this Veteran. b. With particular consideration given to the statements in the November 2011 VA examination, do you find that there was a diagnosable depressive disorder in existence during the Veteran's active service? c. For any current psychiatric disability you find to be diagnostically supported for this Veteran, is it at least as likely as not (probability of 50 percent or more) that the disorder began during active service, or is otherwise related to the Veteran's service in any way? The examiner should review all pertinent records associated with the claims file, including the Veteran's VA examination reports, medical records, and lay statements. All pertinent symptomatology and findings must be reported in detail. In rendering the requested opinion, the examiner must be aware that the Veteran is competent to attest to matters of which he has first-hand knowledge, including feelings of sadness or anxiety. If there is a particular basis to support or doubt any history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear and complete rationale for any opinions or conclusions expressed should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Undertake any other development deemed warranted, and then readjudicate the Veteran's claim on the basis of the additional evidence. If a benefit sought on appeal is not granted, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal to the Board. 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). _________________________________________________ MICHAEL A. PAPPAS 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).