Citation Nr: 1817239 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 04-08 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to increases in the (50 percent from September 28, 2005 and 70 percent from November 30, 2007) ratings assigned for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which increased the rating for PTSD to 30 percent, effective May 3, 2003. In March 2005, a videoconference hearing was held before the undersigned; a transcript is associated with the claims file. In June 2005, the Board remanded the case to the RO for additional development. A December 2005 rating decision granted a 50 percent rating for PTSD, effective September 28, 2005 (the date of a VA examination); the Veteran did not disagree with the effective date assigned. A September 2006 Board decision denied a rating in excess of 50 percent for his PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC), which by a January 2007 Order vacated the Board's decision and remanded the matter for readjudication consistent with instructions outlined in a January 2007 Joint Motion for Remand (Joint Motion) by the parties. In June 2007, the Board remanded the case to the RO for additional development in accordance with the Joint Motion. A January 2010 rating decision granted a 70 percent rating for PTSD, effective November 30, 2007. An October 2010 Board decision denied ratings for PTSD in excess of 50 percent prior to November 30, 2007, and in excess of 70 percent from that date. The Veteran appealed the Board's decision to the CAVC, which by an August 2011 Order vacated the Board's decision and remanded the matter for readjudication consistent with instructions outlined in an August 2011 Joint Motion by the parties. In January 2012 and June 2017, the Board remanded the case to the RO for additional development. The case has now been returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As was done previously in January 2012, the Board remanded the case to the RO in June 2017 to obtain updated VA treatment records and for a VA examination of the Veteran by a psychiatrist to assess the severity of his PTSD. The psychiatrist was instructed to conduct the examination in accordance with DSM-IV, and not DSM-5 (which is to only be applied in claims received by VA or pending before the AOJ on or after August 4, 2014). On September 2017 VA examination; however, the examiner used the criteria of DSM-5, and also did not respond to all questions posed in the remand (specifically, question #2(e)). Therefore, the case must be returned for either an addendum opinion or a new examination, if found to be necessary particularly in light of a January 2018 statement of the Veteran in which he refers to a recent change in medication and subsequent experience of "hallucinations." A remand for an addendum opinion to ensure compliance with prior remand directives (per Stegall v. West, 11 Vet. App. 268 (1998)), is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record complete clinical records of all VA psychiatric evaluations and treatment the Veteran has received for since December 18, 2017. 2. Then, the AOJ should return the Veteran's claims file to the September 2017 VA examiner, or (if that provider is unavailable) another psychiatrist, for an addendum opinion concerning the severity of the Veteran's service-connected PTSD from September 28, 2005 to the present. If another examination is deemed necessary, particularly in light of a January 2018 statement of the Veteran in which he refers to a recent change in medication and subsequent experience of "hallucinations," such should be arranged. The examiner must consider and apply the old criteria of DSM-IV, rather than the criteria of DSM-5, in identifying and describing the nature, frequency, and severity of all current symptoms of the PTSD. The examiner is asked to address the following questions, considering the period from September 28, 2005 to the present (some of these are either new or have been amended from the prior Board remand request): (a). Are there any psychiatric symptoms that are entirely attributable to a disability other than PTSD, and which may be wholly distinguishable from the symptoms of PTSD? If so, please identify, by diagnosis, the psychiatric disability, and describe its symptom(s) and any related impairment of function. To that end, is the Veteran's gambling disorder (identified by the VA examiner in May 2016) symptomatic of or attributable to, at least in part, the PTSD, and if so, what functional impairments are associated with the gambling disorder? (b). Is it possible to discern any definite periods of exacerbation or remission of the PTSD and associated symptoms, and if so, what are they? (c). For the period from September 28, 2005 to November 30, 2007, is the Veteran's PTSD shown to be productive of a disability picture that equates to (i) occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; OR (ii) total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self and others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name? (d). For the period from November 30, 2007 to the present, is the Veteran's PTSD shown to be productive of a disability picture that equates to total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self and others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name? The examiner should comment on the Veteran's January 2018 statement wherein he refers to his medication having recently been changed, which was followed by several episodes of "hallucinations." The examiner must provide rationale for all opinions, and if any opinion sought cannot be offered, explain why that is so. 3. After completion of the foregoing, the AOJ should review the entire record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. 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 remanded by the Board or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ George R. Senyk 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).