Citation Nr: 1806968 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-04 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric condition. REPRESENTATION Veteran represented by: George T. Sink, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1985 to May 1985 and September 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The claim was most recently certified to the Board by the RO in Cleveland, Ohio. In October 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. This matter was most recently before the Board in April 2016 and remanded for further development. For the reasons discussed below, another remand is required before the Board can adjudicate the Veteran's claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his psychiatric disability is related to service. In April 2016, the Board remanded the Veteran's claim to schedule him for a VA examination with opinion on the etiology of his diagnosed acquired psychiatric conditions that specifically considered service treatment records documenting nervousness and sleep problems, as well as the Veteran's lay statements concerning the onset and progression of his psychiatric problems. In June 2016, the Veteran was afforded a VA examination in which he was again diagnosed with schizotypal personality disorder and persistent depressive disorder (dysthymia). The VA examiner opined that a definitive opinion could not be provided without resorting to speculation, adding that there was "simply not enough documentation of professional examination to support causation." The examiner further stated that it had been long accepted within behavioral medicine that a childhood history of physical, emotional abuse and neglect correlate with adult obesity and depression regardless of service experience. The June 2016 VA examiner's cursory opinion is inadequate as it does not provide any explanation for why it would be speculation for him to comment on whether the Veteran's diagnosed psychiatric conditions were related to active duty service. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). The examiner does not indicate 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 ignored specific lay statements the Veteran made regarding his symptoms in service that are supportive of his claim, as well as service treatment records in support of his claim. Specifically, a service treatment record dated in September 1990 noted the Veteran's complaints of nervousness and lack of appetite. Reports of Medical History dated in December 1986 and April 1991 also recorded the Veteran's endorsement of a history of sleep problems, and the December 1986 record also noted a history of depression symptoms. For the foregoing reasons, the June 2016 VA opinion is inadequate and does not comply with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran should be rescheduled for a new VA examination with a more comprehensive and fully responsive VA opinion on the etiology of the Veteran's acquired psychiatric condition that specifically considers his lay statements concerning the onset and progression of his psychiatric problems, as well as the medical evidence of record. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran dated since June 2016. If no medical records are available, this should be noted in the Veteran's claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any currently diagnosed psychiatric disability. The claims folder and any pertinent medical records should be made available for review by the examiner. The examiner should perform any diagnostic tests deemed necessary and elicit from the Veteran a complete history of his complaints of a psychiatric condition, including any medical treatment. Following a review of the record, and any necessary testing, the examiner should address the following questions: (a) Identify all current psychiatric diagnoses. For each diagnosis, state whether the disorder was also present during service. (b) For any disorder which was present during service, provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's diagnosed psychiatric condition had its onset in service or is otherwise related to active duty? The opinions provided thus far, both in June 2016 and even prior to that in July 2014, on this determinative issue have not included the required level of explanation or rationale. The examiner should provide a complete rationale for any opinion provided and should specifically comment on the Veteran's lay statements concerning the onset and progression of his psychiatric problems. In fact, a service treatment record dated in September 1990 noted the Veteran's complaints of nervousness and lack of appetite. Reports of Medical History dated in December 1986 and April 1991 noted the Veteran's endorsement of a history of sleep problems, and the December 1986 record also noted a history of depression symptoms. Further, the Veteran is competent to report observable psychiatric symptoms during and shortly after service, as this requires only personal knowledge, not medical expertise, since it comes to him through his senses. In other words, the VA examiner cannot rely exclusively on the absence of relevant treatment in the medical records for concluding instead that the Veteran did not have a psychiatric disability during his service. And this is especially true where, as here, there is indication (in the service treatment records, no less) of relevant complaints of nervousness during the Veteran's service. If an opinion cannot be rendered without resorting to mere speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. In other words, merely saying that he/she cannot respond will not suffice. 3. After conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).