Citation Nr: 1749077	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-30 892A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, as secondary to service-connected traumatic brain injury (TBI) and/or service-connected tinnitus.


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife




ATTORNEY FOR THE BOARD

P. Nguyen, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1976 to November 1979. He served in the United States Marine Corps.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) and February 2015 Board remand. During the course of the appeal, and prior to the October 2014 Board hearing, the claims file was transferred to the RO in Philadelphia, Pennsylvania.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains the October 2014 Board hearing transcript, additional VA treatment records, and other documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Board finds that additional development is needed before the claim on appeal can be decided. 

First, remand is required to ensure that the RO complies with Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In February 2015, the Board remanded this matter for further evidentiary development. This included to make attempts to verify any periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) as the Veteran's DD Form 214 documents active duty from November 1976 to November 1979 with 10 days of prior inactive service. Although thorough development was conducted regarding the Veteran's stressors, it does not appear that attempts were made to verify any periods of ACDUTRA or INACDUTRA prior to the Veteran's period of active duty service.  On remand, this must be done.

Second, remand is required to obtain adequate etiological opinions.  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).  A medical opinion should address all appropriate theories of entitlement, and support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  When a medical examiner states no conclusion as to etiology or diagnosis can be reached, it must be clear that the examiner has considered all procurable and assembled data, by obtaining all tests and records that might reasonably illuminate the medical analysis. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The physician must clearly identify precisely what facts cannot be determined. Jones, 23 Vet. App. at 390.

On remand, a February 2017 VA examination was conducted.  The VA examiner found there was insufficient information in the record to determine whether the PTSD was caused or aggravated by the service-connected TBI, but did not provide a clear reason for why that was the case.  Additionally, the examiner found there was no separate depressive disorder and that any depressive symptoms were related to the diagnosed PTSD.  The examiner, however, failed to reconcile this finding with the prior diagnoses of depressive disorder of record.  Finally, the February 2017 VA examination contained internally inconsistent opinions, noting in one section that based on the findings from the 2010 TBI evaluation it is possible to differentiate which symptoms were attributable to each diagnosis, with no overlap in symptoms between the TBI and PTSD (pg. 2); however, elsewhere in the 2017 VA examination, the VA examiner stated that symptoms of TBI and PTSD can possibly overlap and episodically interact in presentation, and that it is not possible to differentiate reliably the discrete impacts of these conditions on occupational and social functioning at that time without resort to speculation (pg. 3). Finally, after the Board remand, the Veteran asserted this psychiatric disorder is caused by his service-connected tinnitus.  For the foregoing reasons, remand is required for a new VA examination to address these deficiencies and inconsistencies.

Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative.

2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3.  Contact all appropriate sources in order to verify the specific dates of any ACDUTRA and INACDUTRA service prior to November 1976. Document for the claims file what repositories were contacted and why. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. Any outstanding service personnel records (SPRs) and service treatment records (STRs) should also be obtained and associated with the claims file. Records concerning service merely denoting the amount of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on ACDUTRA and INACDUTRA.

As these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. §3.159(c)(2). The AOJ, therefore, must make as many attempts for these records as are necessary to comply with this VA regulation and document these attempts in a memo to the file if such records are determined to be unavailable. Appropriately notify the Veteran and his representative if unable to obtain these records. 38 C.F.R. §3.159(e)(1).

4. After any additional records are associated with the claims file and verification of the Veteran's service dates has been exhausted, schedule the Veteran for a VA examination to assist in determining the nature and etiology of all psychiatric disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service.

Based upon a review of the record and clinical findings, the VA examiner must provide the following opinions:

a) Is the Veteran currently diagnosed with PTSD in accordance with the DSM-IV? If not, provide a thorough explanation, to include addressing the prior diagnoses of record, to include in VA records from August 2010, September 2010, March 2013, and April 2014, and the 2017 VA examination.

b) If there is a diagnosis of PTSD, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's PTSD had onset in, or is otherwise related to, a verified in-service stressor to include his reports of witnessing the death of a fellow Marine at Camp Pendleton and/or a personal assault that occurred during basic training at Parris Island, South Carolina?

c) If there is a diagnosis of PTSD, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's PTSD is caused or aggravated by his service-connected TBI?

d) Are there any non-PTSD currently diagnosed psychiatric disorders?  If not, address the prior diagnoses of record, to include depressive disorder with anxious distress.

e) For all other non-PTSD psychiatric disorders, is it at least as likely as not (a probability of 50 percent or greater) that the disorder, had onset in, or is otherwise related to the Veteran's active service, to include, but not limited to, his reports of witnessing the death of a fellow Marine at Camp Pendleton and/or a personal assault that occurred during basic training at Parris Island, South Carolina?

f) For all other non-PTSD psychiatric disorders, is it at least as likely as not (a probability of 50 percent or greater) that each disorder is caused or aggravated by the Veteran's service-connected TBI and/or caused or aggravated by the service-connected tinnitus?

5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2016).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
K. MILLIKAN
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) (2016).

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