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Board Fails to Discuss Prior Diagnoses of Psychiatric Condition in Denying Service Connection

Board Fails to Discuss Prior Diagnoses of Psychiatric Condition in Denying Service Connection

Summary of the Case

The Veteran served honorably in the United States Army in 1982 and again from 1990 through 1991.  In 2009, he filed to re-open his previous claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, with new and material evidence.  However, the Regional Office issued a Rating Decision in May 2010 denying his request, finding that the evidence he submitted was not new and material.  The Veteran continued to appeal this finding to the Board of Veterans’ Appeals.  In May 2014, the Board determined new and material evidence was submitted and re-opened his claim for service connection.  The Board did not grant benefits for his acquired psychiatric condition, but instead remanded the claim for updated treatment records and a VA examination.  In December 2016, the Veteran’s claim for service connection for an acquired psychiatric disorder returned to the Board and was remanded again.  When the claim returned for a third time, the Board issued a denial.

Board denies service connection for an acquired psychiatric disorder

In September 2017, the Board issued a decision denying the Veteran’s claim for service connection for an acquired psychiatric condition.  In its decision, the Board relied on the November 2010 and January 2015 VA examinations that determined the Veteran did not have any current diagnoses of a psychiatric condition.   However, the examinations did not address the number of prior diagnoses the Veteran had, including the following:

  • A November 1996 VA treatment record noting an adjustment disorder with mixed emotional features diagnosis;
  • A July 1996 treatment record diagnosing anxiety;
  • A June 2009 mood disorder and adjustment diagnoses; and
  • October 2009, December 2009, January 2011, December 2013, and April 2017 treatment records noting an adjustment disorder diagnosis

While the Board did acknowledge the Veteran’s adjustment disorder that was diagnosed during the claim period, it concluded it was not chronic and therefore did not warrant service connection.

CCK argues the Board relied on inadequate examinations

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for an acquired psychiatric disorder.  CCK argued that the November 2010 and January 2015 VA examinations were inadequate due to the examiners’ failure to discuss the Veteran’s prior diagnoses of psychiatric conditions.  Additionally, CCK asserted that the Board erred in failing to discuss any of the diagnoses other than adjustment disorder when adjudicating the claim.  Finally, CCK argued that the Board’s finding that the Veteran’s adjustment disorder was not chronic was an impermissible medical determination.

Court agrees with CCK and remands the Veteran’s case

CCK argued, and the Court agree, that the VA examinations were inadequate for failure to discuss the Veteran’s prior psychiatric diagnoses, including the diagnoses from before the claim period going as far back as 1996.  On appeal, the Board argued that any such error was harmless because nothing points to show that the Veteran had a diagnosed psychiatric condition, apart from an adjustment disorder, during the relevant period after he requested reopening his claim in November 2009.  The Court disagreed with the Board’s argument and remanded the Veteran’s case for readjudication.  On remand, the Court instructed the Board to either order a new medical examination or explain how it can rely on the opinions despite their inadequacies.

Category: Court Wins

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