Citation Nr: 1806143 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 08-12 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Veteran represented by: Margaret A. Costello, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his Daughter ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1961 to January 1964. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from August and September 2007 rating decisions of the VA Regional Office (RO) in Roanoke, Virginia. The Veteran was afforded a hearing in September 2011 at the VA Central Office in Washington, D.C. before the undersigned Veterans Law Judge. The transcript of the hearing is of record. In December 2015, the Board denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. The Veteran appealed the denial to the Court of Appeals for Veterans' Claims (CAVC). In August 2017, the CAVC granted a Joint Motion to Remand (JMR), by which the Board's denial was vacated and remanded back to the Board for further proceedings. 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 Veteran if further action is required. REMAND The August 2017 JMR indicated that remand is required because the Board erred in failing to ensure that VA met its duty to assist by attempting to obtain relevant medical records and providing an adequate VA examination, as well as complying with prior remand instructions. The JMR noted that the Board denial relied on a June 2015 VA examination. The June 2015 examiner noted two visits the Veteran made to VA mental health providers in June 2010; these records are not associated with the claims file. The June 2015 examiner stated that the records included findings that the Veteran is "intensely preoccupied with his experiences in the military and these are having a negative effect on his health and adaptation." As the records are relevant to the Veteran's claim, the JMR indicated that, on remand, the Board must instruct the RO to obtain copies of any records associated with Veteran's June 2010 treatment by VA Medical Center (VAMC) mental health workers. In addition, the JMR found the June 2015 VA examination inadequate and ordered that an adequate VA examination be conducted. Contrary to the Board's prior instructions, the June 2015 VA examiner failed to address specific evidence that supported valid PTSD diagnosis. This evidence includes a September 2011 assessment by Dr. N.E., in which Dr. N.E. stated that Veteran had been given a diagnosis of PTSD, chronic, and met all the diagnostic criteria for such a diagnosis. Further, an October 2007 letter from the Veteran to Dr. N.E. is present "which provides a summary of the Veteran's claimed stressors." Moreover, the JMR ordered that an adequate medical opinion be obtained addressing whether the Veteran's persistent depressive disorder (PDD) was incurred in or caused by service. The JMR noted that although the June 2015 examiner opined that Veteran's PDD is less likely than not related to his military service, the only rationale articulated in support of this opinion was the fact that STRs do not mention any mental health problems or treatment, and Veteran's records indicate that he first sought treatment for mental health issues in the late 1990s. The JMR stated that this rationale, which ignores lay evidence that the Veteran suffered symptoms of anxiety and depression during and immediately following service, is not adequate to support the examiner's opinion. 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. Associate with the claims file any records associated with Veteran's June 2010 treatment by VA Medical Center (VAMC) mental health workers. Please document all efforts to request and obtain these records in the claims file. 2. Provide the Veteran with a VA examination to determine the etiology of all psychiatric illnesses diagnosed from August 2006 to present, to include persistent depressive disorder (PDD) and PTSD. The Veteran's electronic file, including Virtual VA, should be reviewed by the examiner. Please discuss both DSM IV and DSM V criteria. (a) Please outline all current psychiatric diagnoses. All studies, diagnostic tests, and evaluations deemed necessary by the examiner must be performed. (b) For all psychiatric diagnoses made from August 2006 to present, to include persistent depressive disorder (PDD) and PTSD, please opine whether each is as likely as not (50 percent or greater probability) related to service. (c) Even if PTSD is not found in the current examination, in light of the September 2011 private diagnosis of PTSD, please opine whether the Veteran's diagnosed PTSD is as likely as not (50 percent or greater probability) related to reported in-service stressors. In the rationale, the examiner must identify the specific stressor(s) underlying the PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s). (d) Please specifically address the following evidence: 1. September 2011 assessment by Dr. N.E., in which Dr. N.E. stated that Veteran had been given a diagnosis of PTSD, chronic, and met all the diagnostic criteria for such a diagnosis; and an October 2007 letter from the Veteran to Dr. N.E. "which provides a summary of the Veteran's claimed stressors." 2. Lay evidence that the Veteran suffered symptoms of anxiety and depression during and immediately following service. 3. The service records to include his denial of a history of nervous trouble and the normal psychiatric examination at separation. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The examiner must provide a complete rationale for any opinion provided. 3. After completing all of the above, and any additional development deemed warranted, readjudicate the claim for service connection for an acquired psychiatric disorder on appeal. If any benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC). Thereafter, return the file to the Board for further appellate consideration. 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). _________________________________________________ H. N. SCHWARTZ 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).