Citation Nr: 1806688 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-04 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran had active duty service in the United States Navy from January 1981 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2014, the Veteran testified before the undersigned Veteran's Law Judge and a transcript of that hearing is of record. The case was previously before the Board in March 2015 and the Board remanded the case because the Veteran's last VA examination was inadequate. Accordingly, the Board directed the RO to afford the Veteran another VA examination that conformed to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM). The March 2015 remand directed the examiner to use the DSM-IV criteria because the case was governed by the DSM-IV, as the matter was certified to the Board in January 2013. Subsequently, the case returned to the Board in May 2017 and the Board once again found the Veteran's examination (May 2015 examination) to be inadequate. The Board found this examination to be inadequate because the examiner did not perform the examination according to the version of the DSM that the Board previously requested. Since this remand directive was not followed, the Board again remanded the case in order to afford the Veteran an examination that conformed to the DSM-IV criteria. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As to the Veteran's claim for a psychiatric disability, the Veteran attended a VA examination in June 2017 and the Board finds this examination to be inadequate. The Board finds this examination to be inadequate because the examiner only referred to the DSM-V when she rendered her opinion. The examiner was specifically directed to use the DSM-IV because this case is governed by the DSM-IV, as the matter was certified to the Board in January 2013. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (Mar.19, 2015) (noting that effective August 4, 2014, the diagnosis of a mental disorder must conform to DSM-5, not DSM-IV, but this change does not apply to claims that were certified for appeal to the Board on or before August 4, 2014). Thus, DSM-IV is applicable to this case and the examination must conform to the DSM-IV criteria. Moreover, the actions previously sought by the Board are necessary for a proper adjudication of the Veteran's appeal and there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied the Board itself errs in failing to ensure compliance). Finally, the Board notes that in its review of the opinions provided by the June 2017 VA examiner, with respect to the possibility of a relationship between the Veteran's service-connected knee disabilities and his depression, the examiner opined that there was "no clear evidence that service-connected knee conditions have significantly impac[a]ted the Veteran's mood." Thus, although the examiner determined that it was less likely than not that major depressive disorder was caused or aggravated by the Veteran's service-connected medical conditions, it is apparent that she was seeking more proof than was actually necessary, i.e., "clear" evidence as opposed to simply 50 percent likelihood or greater evidence. Therefore, on remand, the Board requests that the Veteran's new examination be conducted by an appropriate examiner other than the examiner who conducted the June 2017 examination. While the appeal is remand status, the AOJ should also obtain and associate with the record any outstanding VA treatment records. See 38 U.S.C. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from June 15, 2017 to the present. 2. After obtaining authorizations from the Veteran, associate with the claims file his contemporaneous private treatment records. 3. Schedule the Veteran for an appropriate VA examination by an examiner other than the examiner who conducted the June 2017 examination to determine the nature and etiology of any diagnosed psychiatric disabilities during the pendency of the claim on appeal according to the criteria set forth in the DSM-IV. After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions: (A) What are the diagnoses for all of the Veteran's current psychiatric disorders (a current disability is one shown at any time since November 2007, even if not shown on the current examination)? If any previously diagnosed disorder is no longer present, the examiner must provide an explanation (e.g., whether the condition was misdiagnosed, whether it dissipated, etc.). (B) As to each current psychiatric disorder, is it at least as likely as not that (50 percent or greater probability) the psychiatric disability manifested in or is otherwise related to the Veteran's military service? If the Veteran does not meet the criteria for a diagnosis of any acquired psychiatric disorder to include PTSD the examiner must specifically say so. The examiner must explain that finding in light of the medical evidence of record which shows diagnoses of PTSD contained in the April 2010 private hospital discharge diagnosis and the September 2014 private mental health evaluation report. Moreover, the examiner must note that the Veteran's stressor of fear of hostile military action during his active service in Beirut has been conceded and can alone provide a basis for a diagnosis of PTSD. (C) Is it as least as likely as not (50 percent or greater probability) that a current acquired psychiatric disorder had its onset within one year of the Veteran's discharge from his period of active service? (D) Is it as least as likely as not (50 percent or greater probability) that any of the Veteran's diagnosed psychiatric disabilities are caused or aggravated (i.e., permanently worsened) by any of his service connected disabilities (chondromalacia, left and right knee)? The examiner should further address the Veteran's contention that his depression is due to the pain in his knees. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). In providing the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. 4. Then readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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 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 J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).