Citation Nr: 1807118 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-09 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Army from June 1949 to August 1952, in the U.S. Air Force from October 1952 to September 1953, and in the U.S. Navy from December 1958 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the claim was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran appeared and testified before the undersigned Veterans Law Judge at a hearing held in March 2017. A transcript of the hearing has been associated with the Veteran's claims file. The Board previously remanded this matter in August 2017 to get an additional medical opinion. Pursuant to this remand, a medical opinion was obtained in September 2017 and the claim has been properly returned to the Board for further appellate consideration. 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 appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, it must again remand this claim to ensure that VA fulfills its duty to assist the Veteran in developing his claim. As noted above, the Board previously remanded this claim in August 2017 in order to obtain a medical opinion that provided greater clarity into the etiology and nature of any current acquired psychiatric disability, to include PTSD and depression. In that remand, the Board acknowledged that a VA examiner who evaluated the Veteran in January 2011 found that the Veteran did not have an active mental health diagnosis at that time. Notwithstanding that opinion, the Board also explained that a September 2010 VA psychiatric consultation report included an Axis I diagnosis of depression, not otherwise specified. That treatment note also indicated that the Veteran was actively being treated with citalopram to manage his mental health symptoms. For service connection claims, a claimant must generally demonstrate that he or she has a current disability that is etiologically related to active duty service. However, in the August 2017 remand, the Board explained that the United States Court of Appeals for Veterans Claims (Court) has clarified that for claims of service connection, the requirement for a current disability may be satisfied with a showing that the claimant had a disability at the time of the claim for benefits "or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court also explained that "a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." Id. Accordingly, the Board remanded the Veteran's claim to obtain an opinion regarding whether any acquired psychiatric disability that has been present since the Veteran filed his claim for service connection is etiologically related to service. VA obtained an opinion pursuant to the Board's August 2017 remand in September of that year. Unfortunately, it does not appear that the examiner directly addressed the question of whether any possibly resolved psychiatric disability was etiologically related to service. The psychologist who provided this opinion instead stated that the Veteran did not have an acquired psychiatric disorder, that his symptoms are not consistent with PTSD or depression, and that his cognitive issues are reasonable and explained by his age. The September 2017 opinion did not address the September 2010 diagnosis of depression, not otherwise specified, or the evidence showing that the Veteran has been receiving psychotropic medication in the period since he filed his claim. To be considered adequate for VA purposes, a medical opinion must be based upon consideration of the veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be fully informed. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Board ultimately finds that the omission in the September 2017 VA psychological opinion of potentially positive evidence renders it inadequate and the Board must return the report for corrective action. 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. Obtain any outstanding VA psychological treatment records and associate them with the Veteran's claims file. 2. Thereafter, obtain an addendum opinion from the psychologist who provided the September 2017 medical opinion or, if she is not available, an appropriate medical professional. The examiner is asked to review the claims file and provide an opinion and complete rationale for the following items: a) Please identify any psychiatric diagnosis that the Veteran has had since the Veteran filed his claim for service connection for PTSD in December 2010. In providing any such diagnosis, the examiner is asked to specifically discuss the September 2010 Axis I diagnosis for depression, not otherwise specified, and his treatment at that time of citalopram. The examiner is also asked to explicitly discuss a March 2011 VA treatment record that includes a diagnosis of depression and indicates that the Veteran was prescribed Celexa, and a June 2014 VA treatment record indicating that the Veteran's depression was reportedly stable on citalopram. The examiner is reminded that, for VA compensation purposes, a "current" disability is one that has been present at any time since the Veteran filed a claim for service connection, even if that condition has resolved. b) If the examiner finds that the Veteran has had an acquired psychiatric disorder at any point since he filed his claim for service connection in December 2010, please provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the disability arose in or is otherwise etiologically related to the Veteran's active duty service, to include his contention that it relates to his exposure to dead bodies in Korea. 3. After ensuring compliance with the directives above, conduct any other development deemed necessary or raised by the record. 4. Finally, readjudicate the Veteran's claim for service connection for an acquired psychiatric disability. If the claim is not granted, send the Veteran and his representative a Supplemental Statement of the Case and allow them an appropriate amount of time to respond before returning the case to the Board for further appellate consideration. 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). _________________________________________________ M. TENNER 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).