Citation Nr: 21010546 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-04 353 DATE: February 25, 2021 REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, depressive disorder, and alcohol dependence, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1998 to February 2002. In April 2018, the Veteran provided testimony at a Board video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. In July 2018, the Board issued a decision that, in relevant part, denied the Veteran’s service-connection claim for a psychiatric disorder, claimed as PTSD and to include anxiety disorder and alcohol dependence. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Veteran and the Secretary of Veterans Affairs (parties) filed a Joint Motion for Partial Remand and agreed to remand the claim back to the Board, which was granted by the Court. In October 2019, the Board issued a decision that denied the Veteran’s service connection claim for a psychiatric disorder, claimed as PTSD and to include anxiety disorder and alcohol dependence. The Veteran appealed the Board’s decision to the Court. In August 2020, the parties filed a Joint Motion for Remand (JMR) and remanded the claim back to the Board, which was granted by the Court. The case has been returned to the Board for further appellate review. Entitlement to service connection for a psychiatric disorder, to include PTSD, anxiety disorder, depressive disorder, and alcohol dependence is remanded. The parties within the JMR agreed that the Board erred by failing to provide an adequate statement of reasons or bases to support its findings and conclusions and failing its duty to assist in providing an adequate medical examination, as required under 38 U.S.C. § 5103A(d)(1); 38 U.S.C. § 7104(d). Specifically, the parties found that the Board erred in relying on an inadequate medical examination in denying the claim. The crux of the JMR was the finding by the parties that the Board improperly relied on a July 2012 VA medical examination insofar as the examiner failed to provide an adequate opinion as to whether the Veteran’s service aggravated his anxiety disorder. The parties also agreed that the Board erred by failing to provide an adequate statement of reasons or bases to support its probative value determination regarding treatment records indicating a diagnosis of PTSD. The parties found the Board erred in concluding none of the prior diagnoses were “explained by a medical professional as to what criteria were met to provide the diagnosis” of PTSD. The parties stated the Board failed to explain why an April 2013 mental health treatment record noting a diagnosis of PTSD and completed by a VA staff psychiatrist warranted less probative weight than July 2012 and August 2016 VA examinations, which found a diagnosis of PTSD was not warranted. Thus, the parties agreed remand was warranted for the Board to discuss the April 2013 mental health treatment record and provide adequate reasons or bases to support its probative weight determinations. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for purposes of obtaining a medical opinion regarding the etiology of the psychiatric disorder, claimed as PTSD, and to include anxiety disorder, depressive disorder, and alcohol dependence. The examiner is asked to review the record. Any indicated evaluations and/or psychological testing deemed to be necessary by the examiner should be performed. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: • In July 2012, a VA examiner found the Veteran did not meet the criteria for a diagnosis of PTSD under the relevant DSM criteria. The July 2012 examiner noted that the Veteran reported 3 total stressors, but stated that two incidents, one in Bosnia (1999) and one where he witnessed the death of a friend in his barracks (January 2000) did not bother him as much as the third incident, where he was grazed by a bullet, which incident occurred during service. The Veteran told the VA examiner he had been hospitalized 3 times due to suicide attempts. The VA examiner diagnosed the Veteran with anxiety disorder NOS. The examiner found that the Veteran’s anxiety disorder was less likely than not related to his reported stressor in the military and that the Veteran’s stressful childhood, limited social support, past history of significant substance abuse, and current financial stress due to unemployment have as likely as not been contributing to his anxiety disorder. The examiner failed to provide an opinion as to whether Veteran’s service aggravated his diagnosed anxiety disorder, which presumably pre-existed service. See VBMS entry with document type, “VA Examination,” receipt date 07/24/2012. • In August 2016, a VA examiner found the Veteran did not meet the criteria for a diagnosis of PTSD under the relevant DSM criteria. The examiner diagnosed alcohol abuse with other alcohol-induced disorders. The examiner found the Veteran “has multiple mental health symptoms including anxiety and depression that appear to be directly related to his alcohol use.” See VBMS entry with document type, “C&P Exam,” receipt date 08/18/2016, at pp. 1-8. • An April 2013 VA treatment record shows a finding by a VA psychiatrist that the Veteran met the criteria for a diagnosis of PTSD under the relevant DSM criteria. See VBMS entry with document type, “CAPRI,” receipt date 12/20/2017, with “#2” in the subject field, at pp. 12-13. • Elsewhere, VA treatment records show diagnoses of PTSD, rule out PTSD, and show positive PTSD screens. • Within a July 2004 VA treatment record, the examiner documented that the Veteran “insisted I record his diagnosis as PTSD.” See VBMS entry with document type, “CAPRI,” receipt date 12/20/2017, with “#1” in the subject field, at pp. 12-15. • A March 2015 VA treatment record shows that the VA psychiatrist wrote that the Veteran started alcohol and cocaine well before military service and long before he reported traumas. The psychiatrist also wrote, “[H]e appears to have gotten the [PTSD] diagnosis on the chart by insisting that it be given.” See VBMS entry with document type, “CAPRI,” receipt date 05/16/2016, with “#1” in the subject line, at pp. 707-709. • A March 2016 opinion was issued by a private Psychiatric-Mental Health Nurse Practitioner, wherein stating the Veteran had PTSD and it was at least as likely as not secondary to his experiences in service to the military rather than “his stressful childhood, limited social support, past history of significant substance abuse, and current financial stress due to unemployment.” See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 04/08/2016, at p. 2. • A June 2012 VA treatment record documents that the Veteran reported he began drinking at age 18 and started using cocaine at age 19, both of which would have occurred prior to service. He reported he had quit drinking in 2010. Regarding cocaine, he reported that he quit cocaine while in service and started back in 2002 and then quick again and then started again in 2007 and quit in 2010. See VBMS entry with document type, “CAPRI,” receipt date 12/20/2017, with “#6” in the subject line, at pp. 87-90. • At the April 2018 hearing, the Veteran’s representative contended that there was an October 2001 record indicative of psychological markers in service. The representative stated prior to that time, the Veteran’s service was good, and the October 2001 record showed the Veteran went to counseling for alcohol and marijuana abuse at that time, and this was roughly six months following the Veteran getting shot in April 2001. See VBMS entry with document type, “Hearing Transcript,” receipt date 04/04/2018, at pp. 3-4. • The service treatment records show that in April 2001, the Veteran was shot, which bullet grazed the right hip area, and he was diagnosed with a superficial gunshot wound. This is alleged to be one of his in-service stressors. See VBMS entry with document type, “STR – Medical,” receipt date 04/14/2014, with “#2” in the subject field, p. 93. • The October 2001 service treatment record discussed by the Veteran’s attorney at the April 2018 hearing shows diagnoses of alcohol abuse and cannabis abuse. See VBMS entry with document type, “STR – Medical,” receipt date 04/14/2014, with “#2” in the subject field, p. 24. • The Veteran’s service personnel records show that he reported being charged with possession of marijuana in May 1995, which is prior to his period of active duty. See VBMS entry with document type, “Military Personnel Record,” receipt date 07/07/2016, p. 27. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following questions: (1) Is any psychiatric disorder at least as likely as not (50 percent or greater likelihood) related to the Veteran’s service from February 1998 to February 2002? Please specifically discuss the Veteran’s lay contentions that his psychiatric disorder started in service following being shot in April 2001, as told to the July 2012 VA examiner. Please also discuss the Veteran’s representative’s contentions that the October 2001 record was indicative of psychological markers in service. Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. (2) The July 2012 VA examiner had diagnosed the Veteran with anxiety disorder, NOS, and determined that the Veteran’s stressful childhood, limited social support, past history of significant substance abuse (alcohol and cocaine) and current financial stress due to unemployment had at least as likely as not contributed to his anxiety disorder. Do you agree with this conclusion? If so, is it at least as likely as not that anxiety disorder was aggravated during the Veteran’s period of active duty from February 1998 to February 2002? Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. (3) If you find that the Veteran does not have a diagnosis of PTSD, please provide an explanation for why his symptoms do not meet that criteria. (4) If the Veteran has a diagnosed psychiatric disorder, is the Veteran’s alcohol dependency/abuse at least as likely as not, (50 percent or greater likelihood), caused by the psychiatric disability? Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. The examiner is asked to provide a rationale for all conclusions reached with reference to relevant evidence of record and/or medical principles, as appropriate. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.