Citation Nr: 18157216 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 16-44 344 DATE: December 12, 2018 REMANDED Service connection for an acquired psychiatric disability, including post-traumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to May 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). A VA examiner indicated that the Veteran had other psychiatric disabilities in addition to PTSD. Therefore, to provide the broadest and most sympathetic review, the claim for service connection for PTSD has been recharacterized to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service connection for an acquired psychiatric disability, including PTSD, is remanded. The Board is required to weigh the evidence of record, including the medical evidence, to make factual determinations. Cf. Evans v. West, 12 Vet. App. 22, 30 (1998). Although the December 2014 PTSD Disability Benefits Questionnaire (DBQ) noted a thorough and adequate review of the Veteran’s medical history and prior examinations, the explanation to disregard the Veteran’s reported symptoms due to “exaggeration and embellishment” does not meet the legal criteria to be used as evidence in this claim. Typically, Veterans are qualified (“competent”) to testify to the presence of observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, a negative credibility assessment may be determined (by the Board, not by a medical examiner) if the totality of the evidence dictates. Cf. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). Aside from the December 2014 DBQ, there is no apparent evidence in the record that would bring the Veteran’s credibility into question. Thus, the clinician’s decision to not interpret or assess the Veteran’s symptoms from the administered PTSD checklist MUST be supported by a thorough and well-reasoned explanation (i.e. “rationale”). Cursory reference to an elevated symptom validity measure does not provide the Board with enough information to weigh the evidence. A description of the tests used and actual scores compared to benchmarks would have helped support the DBQ non-diagnosis. The Board acknowledges the notations made with respect to the Veteran’s refraining from cognitive testing (i.e., did not attempt to spell “world” backwards or “serial 3s”) and his reported inability to answer questions with respect to highly learned material (e.g., number of children and duties of a long-term job), however, a further (and much more well-explained) rationale would be needed to support a negative credibility assessment. Similarly, the December 2014 private examination report (actual examination was conducted in November 2014) also does not meet the legal criteria to establish the Veteran’s claim, because it lacked a thorough and well-explained medical rationale connecting its conclusions with supporting data. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Because a thorough and well explained rationale was not provided, the private examination’s diagnosis and opinions are conclusory, preventing both the Board from making an informed decision and an appellant court from future meaningful review. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Likewise, the updated evaluation in the private clinicians’ May 2016 followup letter also lacks a thorough and well-explained rationale. Furthermore, in contrast to the December 2014 VA DBQ, it is not apparent the December 2014 private examination sufficiently considered the Veteran’s prior medical history or examinations. Although a private medical opinion may not be discounted solely because the private doctor did not review the entire record, “a recitation of the medical information on which the opinion is based can aid the Board’s evaluation of the sufficiency of the opinion.” Nieves-Rodriguez, 22 Vet. App. at 304. Here, the probative value of the private examination’s review of the prior medical history and examinations is far outweighed by the detailed and adequate review by the 2014 VA DBQ examiner. The Board acknowledges the Veteran’s report that the December 2014 VA DBQ was conducted by “students” (see April 2016 VA Form 27-0820) and defense of the masters level licensed psychological associate who conducted his November 2014 private examination (see September 2016 VA Form 9). Because the VA DBQ was signed by a psychologist and the private examination report was co-signed by a Ph.D., the Board holds both were completed by adequately qualified examiners. The Board also acknowledges the private clinicians’ May 2016 followup letter which notes that the Veteran continues to receive ongoing treatment under their care. Although VA does not automatically assign a treating physician’s opinion greater weight, the Board may consider a lengthy treating relationship along with all the other evidence when assigning probative weight. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001). However, a treating physician’s diagnosis or opinion must still meet the minimal legal standards to be used as evidence (e.g. thorough and well-explained rationale). The Board notes that additional evidence, such as ongoing treatment records with greater detail from the treating physician (especially if they speak to a causal link to service) may help bolster the evidence in the record and assist the Veteran’s case. Lastly, the case file is incomplete due to omission of the Veteran’s VA medical records which were used by the December 2014 PTSD DBQ examiner in reaching her conclusion. The VA DBQ made at least three references to the Veteran’s VA medical records, which noted three previous VA consultations for PTSD symptoms. Because the VA medical records were referenced in the December 2014 DBQ, the RO had “sufficient knowledge” that the VA medical records existed, resulting in at least constructive possession regardless of actual receipt. Cf. Turner v. Shulkin, 29 Vet. App. 207, 218 (2018). Because these records are not included in the case file, the Board is prevented from making a service connection determination based on a “review of the entire evidence of record.” 38 C.F.R. § 3.303(a) (2017). It should be noted that relevancy is not a requirement for VA medical records. See Sullivan v. McDonald, 815 F.3d 786, 791 (Fed. Cir. 2016). Additionally, the Veteran was entitled to the evidence of record when the RO made its original decision. See Turner, 29 Vet. App. at 220. By omitting the VA medical records from the case file, the Veteran was also disadvantaged in this appeals process. Furthermore, the Veteran requested in February 2016 that his spouse have access to all available information in accordance with the Privacy Act of 1974. Thus, failure to make this information available may also result in a violation of 38 C.F.R. § 1.577. Lastly, a more complete review of the Veteran’s VA medical records could reveal evidence resulting in a service-connected disability of another psychiatric disorder in lieu of PTSD. For example, one of the VA consultations referenced in the DBQ briefly noted the Veteran had “anxiety.” Accordingly, a remand is necessary for additional development and to afford the Veteran with a new VA examination. Because adverse credibility issues were raised by the December 2014 VA examination and the Veteran has reported concerns with the first examiners, the Board requests the new VA examination be conducted by a different qualified clinician. The matter is REMANDED for the following action: 1. Obtain all the Veteran’s VA treatment records for association with the claims file. 2. Send the Veteran a letter (a) inviting submission of psychiatric/mental health treatment records (aside from the December 2014 private examination report) and/or other evidence regarding his reported stressors (such as statements from fellow servicemembers describing duties and experiences) and advising the Veteran that any of this evidence would help VA evaluate this claim AND (b) asking the Veteran to identify any providers of treatment for psychiatric conditions/mental health and for permission to obtain these records for association with the claims file (of particular interest would be the ongoing PTSD counseling with Psychological Consulting Services.) 3. After completing directives one and two, schedule the Veteran for an examination with an appropriate examiner to evaluate the nature and cause of the reported PTSD or other acquired psychiatric disabilities. The Board requests a new examiner who did not participate in the December 2014 DBQ examination. The Board regrets the need to remand this matter to the RO; however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with the instructions and directives below (that is, full and thoroughly explained answers to each of the questions) to avoid delays in adjudication Examination Instructions The Veteran seeks service connection for PTSD. The Board has recharacterized this claim to include other psychiatric disabilities to include PTSD. Please answer the following questions based on (1) a review of the claims file, (2) interview and examination of the Veteran, and (3) any needed diagnostic testing. a) Please identify whether the Veteran meets the diagnostic criteria for PTSD. b) Please identify (by diagnosis) each non-PTSD psychiatric disability. c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed psychiatric disabilities to include PTSD (1) had its onset in active service OR (2) is otherwise related to the Veteran’s service? In answering question c, please elicit, report, and refer to the Veteran’s description of symptom onset and progression. In answering questions a, b, and c: It should be noted that the December 2014 DBQ appears to be a thorough and adequate review of the Veteran’s medical history and prior examinations and these reviews are usable to the Board for future evaluations. Future updates to the Veteran’s medical history conducted with the same level of thoroughness and explanation should also be adequate. Additionally, the Board AND the new examiner cannot necessarily rely on the December 2014 VA DBQ’s conclusions that the Veteran’s reported symptoms are insufficient for a PTSD diagnosis due to a negative credibility assessment by the examiner. The Board understands that the symptom validity measures/ Structured Inventory of Malingered Symptoms (SIMS) indicated some potential exaggeration, but that conclusion is inconsistent with the rest of the claims file. Assumptions based on symptom validity measures/SIMS should be set aside in the new VA examination. IF the new examiner concludes that the veteran is exaggerating or that there are any credibility issues, the examiner should report that conclusion BUT this conclusion MUST be VERY thoroughly explained because veterans are presumed to be credible unless there is specific evidence to the contrary. Additionally, if the examiner determines and adequately supports a conclusion of exaggeration, the examiner should clearly identify to the Board when and how they are applying that determination of exaggeration. Furthermore, the examiner should delineate conclusions with and without applying the determination of exaggeration. For example, the December 2014 DBQ noted in section-9 that the PTSD checklist had been administered but then declined to interpret and assess the symptoms due to a high SIMS score. The new examination should interpret the symptoms for the Board and delineate both the result of applying a conclusion of exaggeration (if applicable) and the result presuming the Veteran’s credibility. [CONTINUED ON NEXT PAGE] A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Arritt, Associate Counsel