Citation Nr: 1812541 Decision Date: 02/28/18 Archive Date: 03/08/18 DOCKET NO. 13-10 651 ) 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 a depressive disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to September 1966. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded this matter in July and November of 2015 for evidentiary development. In March 2017, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. This resulted in an October 2017 Joint Motion for Remand (JMR) which vacated the Board's March 2017 decision and remanded the matter back to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Having considered the October 2017 JMR and the evidence of record, the Board has determined that a new VA examination is necessary. This is consistent with the findings of the JMR and the Veteran's request in a January 2018 statement from his representative. Specifically, the October 2017 JMR determined that the Board's March 2017 decision relied on an inadequate January 2016 VA medical opinion. The January 2016 VA examiner determined that the Veteran did not meet the DSM criteria for a diagnosis of PTSD and that his diagnosed unspecified depressive disorder was less likely than not related to service. In her rationale, the VA examiner omitted any reference to the Veteran's lay statements with respect to the onset of relevant symptoms. The examiner instead relied on the lack of mental health treatment records between separation from service and 2005. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not by itself refute the credibility of the Veteran's assertions). As a result, remand for a new VA examination and corresponding medical opinion which appropriately accounts for the lay statements of record is necessary. In doing so, the examiner is reminded that the Veteran served in combat within the Republic of Vietnam, and as a result, the provisions of 38 U.S.C. § 1154 (b) apply. In determining that a new VA examination is necessary, the Board notes the November 2013 private medical opinion issued by the Veteran's mental health counselor. However, the probative value of this opinion is limited as the counselor provided a limited rationale and instead issues a conclusory statement that the Veteran's psychiatric disorders are "likely a direct result of the trauma from Vietnam." The counselor provides no further explanation to support this claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination with an examiner of appropriate expertise. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the report. Based on a review of the claims file and the clinical findings of the examination, the VA examiner is requested to: a) Identify any current psychiatric disorders. If the Veteran currently does not meet the criteria for any psychiatric disorder, the examiner should address whether he met the criteria at any time since he filed his compensation claim January 2011. b) If the Veteran is diagnosed with PTSD specifically, the examiner should then offer 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 reported stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to those reported stressors. In doing so, the examiner is reminded that the Veteran's personnel records verify that he served in combat. c) If the Veteran is diagnosed with a psychiatric disorder other than PTSD, then the examiner should specifically offer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the diagnosed psychiatric disorder was sustained during service, or, is etiologically related to an injury or illness sustained by the Veteran during his active duty service, to include his combat service in Vietnam. A complete rationale for any opinion expressed should be provided in a report. The examiner is asked to reconcile his/her findings with any conflicting medical evidence of record. In rendering the opinion, the examiner must consider and address the lay statements of record with respect to the onset of symptoms. The examiner is reminded that the lack of contemporaneous medical records does not by itself refute the credibility of the Veteran's assertions. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL LANE 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).