Citation Nr: 1805719 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-47 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, adjustment disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Barner, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 2001 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2013, the Board remanded the claim for further development of the evidence. In April 2016, the Board denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include depression. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). An October 2016 Joint Motion for Partial Remand (JMPR), moved the Court to vacate the April 2016 Board decision to the extent that it denied entitlement to service connection for an acquired psychiatric disorder. The Court granted the JMPR in an October 2016 Order. In January 2017, the Board remanded the claim for further development of the evidence pursuant to the October 2016 JMR. Most recently, in September 2017 the Board remanded the Veteran's claim to obtain an adequate VA examination regarding the Veteran's claimed acquired psychiatric disability. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Veteran was afforded an October 2017 VA examination for mental health, the Board finds that the examiner's opinion remains inadequate. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds that the October 2017 opinion continues to be inadequate, for the reasons discussed below, and remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2017 examiner merely listed the Veteran's stressors, but failed to discuss the import, if any, of the reported stressors as well as the Veteran's contentions that his symptoms began in service. In addition, the examiner failed to provide any rationale for why it would be mere speculation to provide an opinion in regards to earlier diagnoses of depression and anxiety. The September 2017 remand instructions requested that the examiner: identify psychiatric health diagnoses, discuss the significance of earlier diagnoses; provide etiology opinions; explain whether any diagnosis previously of record can no longer be explained; indicate if PTSD is present, and identify its stressors if so; and, discuss whether alcohol abuse could be a marker for depression. In addition, the examiner was requested to discuss the significance of earlier DWI and potential alcohol abuse; the Veteran's reported onset of depression and anxiety; and the Veteran's reported symptoms at the time of discharge from service. The examiner was requested to consider the Veteran's contentions and provide a rationale for all opinions reached. Following October 2017 VA examination, the examiner opined that there was an initial PTSD diagnosis that met DSM criteria, but that it was less likely than not incurred in or caused by service. The examiner reasoned that there was no report of mental health issues during the Veteran's service, and no consistent report of ongoing mental health problems since service, such that there could not be a nexus between current symptoms and service. The Board finds the examiner's factual basis is inaccurate where the Veteran has reported that he felt depressed towards the end of service, and there has been a suggestion that he self-medicated with alcohol. Then, the examiner indicated that although the record reflected diagnoses of adjustment disorder with anxiety and depressed mood, with onset of depression reportedly in 2004, that the examiner could not determine if these conditions were service connected without resorting to mere speculation. The Board finds that the October 2017 examiner's conclusion is cursory and failed to provide a rationale. The examiner did not in any meaningful way discuss the specifics of the Veteran's case, but rather listed the evidence. Given the inadequate reasoning provided, and the reliance on an incomplete factual basis, remand to obtain an adequate VA opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Following review of the claims file and examination of the Veteran if deemed necessary, a VA psychologist or psychiatrist should respond to the instructions below. (A) Please identify ALL current psychiatric diagnoses. (B) For each diagnosed psychiatric disability, indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in service or is otherwise related to service. (C) For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (D) If the criteria for a diagnosis of PTSD are met, please specify the stressor(s) supporting the diagnosis. Please assess under the DSM-IV as well as DSM-5. (E) Please indicate whether the Veteran's reports of in-service substance abuse can be used as a "marker" for self-treating depression. Please explain why or why not. In issuing the requested opinions, please specifically discuss the significance of the following: (1) VA treatment records documenting a diagnosis of adjustment disorder with anxiety and depression, specifically on March and July 2008, and March 2009. (2) May 2008 VA examination report documenting a diagnosis of major depressive disorder, noting "[s]ingle episode without psychotic features. The claimant does not meet criteria for alcohol abuse at this time." The Veteran's reports that he was charged with a "DWI" while stationed in England. (3) The Veteran's November 2009 VA Form 9 that reported him experiencing depression in 2004 and anxiety in 2007. (4) October 2013 VA examination report describing the Veteran's reason for separation as "burnt out." Also, the Veteran's report of depression and anxiety following separation. (5) November 2014 VA treatment records revealing the Veteran's complaints of anxiety and PTSD as well as documenting diagnoses of anxiety and insomnia. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. A complete rationale for the opinions rendered must be provided. If the requested opinions cannot be provided without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. If the examiner diagnoses PTSD on the basis of a stressor for which credible supporting evidence is needed, the AOJ should undertake to obtain such evidence, to include by submitting inquiries to appropriate records repositories and by requesting additional information from the Veteran, if needed. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. § 3.655. In the event that the Veteran does not report for the aforementioned examination, if required, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for an acquired psychiatric disorder. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. An appropriate period of time should be allowed for a response. 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). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).