Citation Nr: 1807353 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-24 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and S.M. ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from August 11, 1972 to June 13, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for any mental condition (claimed as bi-polar). In March 2017, the Veteran testified before the undersigned Veteran Law Judge at a live videoconference hearing. A transcript of the proceeding is of record. In December 2017, the Veteran submitted a motion to advance his appeal on the Board's docket due to financial hardship, indicating that he is currently unemployed and there is a possibility he might begin the foreclosure process. Appeals must be considered in docket number order, but may be advanced where a Veteran is experiencing "severe financial hardship." 38 C.F.R. § 20.900(c). While the Veteran did submit correspondence from his son indicating that his son's family needed to "step away" from providing him with financial assistance, the Veteran has not submitted any evidence in support of his claim of financial hardship, to include evidence of past due bills or accounts, or property foreclosure. Moreover, the record does not otherwise indicate that the Veteran is currently suffering from financial hardship such that expedited consideration is warranted and he has not contended that there is any other basis on which to consider his motion for expedited consideration. See 38 C.F.R. § 20.900(c). In the absence of sufficient cause, the Veteran's motion to advance on the docket is denied. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Veteran was afforded a VA examination in August 2015, where the examiner found a current diagnosis of PTSD, major neurocognitive disorder, panic disorder, agoraphobia, and alcohol use disorder. Despite concluding that the Veteran's "claimed condition was at least as likely as not" etiologically related to service, the Board finds this medical opinion was inadequate. First, the examiner indicated that the primary diagnosis of PTSD, and secondary diagnoses of panic disorder, agoraphobia, and alcohol use disorder, was based on the presumption that the Veteran's identified stressor ("witnessing of a peer sailor's abrupt death aboard ship") was accurate. The Board notes that this stressor has not been corroborated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (stating that "an opinion based on an inaccurate factual premise has no probative value."). Moreover, while the medical evidence of record indicates that the Veteran's acquired psychiatric condition has been variously diagnosed, to include bipolar disorder, generalized anxiety disorder, personality disorder, and depression, the examiner's opinion did not address these diagnoses. See, e.g., VA Treatment Record dated Apr. 24, 2012. Therefore, due to the inadequacy of the August 2015 VA medical opinion, an addendum opinion must be obtained that clarifies the Veteran's various diagnoses and determines the nature and etiology of his acquired psychiatric condition. Additionally, while on remand, the AOJ should obtain the records of all relevant treatment the Veteran has received (the records of which have not already been obtained, so they, too, may be considered). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment records, obtain an addendum opinion from the August 2015 VA examiner, or, if unavailable, from another appropriate medical professional, which addresses the nature and etiology of the Veteran's acquired psychiatric condition. His claim file, including a copy of this remand, must be made available to the examiner for review. Following review of the evidence of record and the Veteran's statements, the examiner must address the following: (a) Identify all psychiatric conditions documented in the medical evidence of record since August 26, 2009. (b) For each psychiatric disorder found other than PTSD, panic disorder, agoraphobia, and alcohol use disorder, the examiner should provide an opinion regarding whether each disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise etiologically related to military service. The mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of these claimed disabilities, provided there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstances presented. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. 3. Ensure that the requested examination report is responsive to the applicable rating criteria. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. §4.2. 4. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claim remaining on appeal. If the issue remains denied, send the Veteran an SSOC, and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant 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. §§ 5109B, 7112 (West 2014). _________________________________________________ M. H. Hawley 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).