Citation Nr: 1328697 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-19 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for major depression. 2. Entitlement to service connection for an acquired psychiatric disability, currently diagnosed as posttraumatic stress disorder (PTSD) and major depression. 3. Entitlement to service connection for fibromyalgia, to include as secondary to an acquired psychiatric disability currently diagnosed as PTSD and major depression. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2006, April 2008, and January 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The June 2006 rating decision, in pertinent part, denied service connection for both PTSD and major depression. The April 2008 rating decision denied entitlement to TDIU. The January 2009 rating decision denied service connection for fibromyalgia. The Board notes that the Veteran filed a timely notice of disagreement with respect to the claim of entitlement to service connection for major depression in June 2007, and although a statement of the case involving this claim was issued in May 2008, the Veteran did not file a timely substantive appeal with respect to this issue. When the case was most recently before the Board in December 2010, the Board determined that the claim of entitlement to service connection for major depression was not currently before the Board. As such, the June 2006 rating decision denial of service connection for major depression is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The Board finds that statements and evidence of record reasonably raise the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for major depression. Although the claim to reopen was not previously adjudicated by the Agency of Original Jurisdiction, because the Board is granting the claim to reopen, and granting service connection for acquired psychiatric disabilities, currently diagnosed as PTSD and depression, there is no prejudice to the Veteran in this regard. A review of the record shows that the Veteran has current diagnoses of PTSD and depression. Based upon this information, and the fact that the Board is reopening the claim of entitlement to service connection for major depression, the Board has recharacterized the service connection issue (formally appealed as a claim for service connection for PTSD) as entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as PTSD and major depression, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, the claimant is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board notes that the June 2006 rating decision also denied service connection for pulmonary hypertension with mitral regurgitation, myotonia, hypertension, sleep apnea, reflux disease, diabetes, arthritis, perforated ear drum, hearing loss, tinnitus, and disability secondary to exposure to ionizing radiation, and the Veteran submitted a timely notice of disagreement with respect to these issues in June 2007. However, despite a statement of the case being issued in May 2008, the Veteran did not file a substantive appeal with respect to these issues. As such, they are final, and not for appellate consideration. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (2012). The Board recognizes that in June 2009 the Veteran stated that she never received the statement of the case on these issues. However, the May 2008 statement of the case was sent to the correct address of record, and there is no indication mail was returned to VA. Thus, it is presumed to have been received. The law presumes the regularity of the administrative process in the absence of clear evidence to the contrary. See Jones v. West, 12 Vet. App. 98 (1998); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Derwinski, 2 Vet. App. 62 (1992). Therefore, these issues are not currently before the Board. During the course of the appeal, the Veteran testified at Board hearing conducted via videoconference in September 2010. A transcript of the hearing is of record. The Veterans Law Judge (VLJ) who conducted the videoconference hearing is now retired. In a letter to the Veteran, the Veteran was informed that the VLJ who conducted her hearing is no longer employed by the Board. The Veteran was offered the opportunity to testify at another hearing. However, in June 2013 she submitted a statement in response, indicating that she did not wish to appear at another hearing and that she wished for her case to be considered on the evidence of record. As such, the Board may proceed with the appeal. The issues of entitlement to service connection for fibromyalgia, to include as secondary to an acquired psychiatric disability currently diagnosed as PTSD and major depression, and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A June 2006 rating decision denied the Veteran's claim for entitlement to service connection for major depression; notice of the determination and his appellate rights were provided, and a timely substantive appeal was not filed. 2. Evidence received subsequent to the June 2006 rating decision is new and material, as it raises a reasonable possibility of substantiating the claim for service connection for major depression. 3. The Veteran is not a combat veteran. 4. A diagnosis of PTSD based on a claimed in-service stressor has been offered. 5. Credible supporting evidence that the claimed in-service stressor occurred has been submitted. 6. The Veteran's major depression is etiologically related to his PTSD. CONCLUSIONS OF LAW 1. The June 2006 rating decision which denied service connection for major depression is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for major depression. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2012). 3. Acquired psychiatric disabilities, currently diagnosed as PTSD and major depression, were incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (ie., describes what is meant by new and material evidence under either the old or new standard); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In the decision below, the Board has reopened the Veteran's claim of entitlement to service connection for major depression and granted the Veteran's claim for service connection for an acquired psychiatric disability, currently diagnosed as PTSD and major depression. Therefore, regardless of whether the VCAA duties to notify and assist have been met in this case with regard to her claim to reopen and her service connection claim involving an acquired psychiatric disability, no harm or prejudice to the appellant has resulted. As such, the Board concludes that any defect in providing notice and assistance to the Veteran is at worst harmless error in that it does not adversely affect the essential fairness of the Board's adjudication of the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Legal Analysis Claim to Reopen In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase 'raises a reasonable possibility of substantiating the claim' as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. at 120 . For the reasons that follow, the Board finds that new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for major depression. Historically, the Board notes that in a June 2006 rating decision the RO denied service connection for major depression on the basis that there was no evidence of any diagnosis or treatment for depression in service. Although the Veteran submitted a notice of disagreement with respect to this issue and a statement of the case was issued in May 2008, the Veteran neither submitted a timely substantive appeal nor submitted new and material evidence within the one year appeal period. The June 2006 rating decision thus became final as to the claim for service connection for major depression. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence added to the record since the June 2006 rating decision which denied the Veteran's claim for service connection for major depression includes, in pertinent part, an April 2011 VA examination report and April 2012 VA addendum opinion. The April 2012 addendum opinion states that the Veteran has participated in mental health treatment for PTSD and major depressive disorder for several years, and in addition to sleep and mood disturbance, the Veteran endorsed PTSD symptoms that are consistent with a history of sexual assaults. The examiner concluded that the Veteran meets the diagnostic criteria for PTSD secondary to military sexual trauma. The examiner further concluded that the Veteran has depressive disorder which is related to her PTSD diagnosis. The examiner reviewed the claims file, examined the Veteran, and performed psychometric tests on the Veteran, the results of which were determined by the examiner to be valid. This newly submitted evidence is new in that it was not of record at the time of the June 206 denial of the claim. Additionally, it is material because it raises a reasonable possibility of substantiating the claim of entitlement to service connection for major depression. Specifically, this newly submitted evidence includes a current diagnosis of major depression, it links the Veteran's major depression to her PTSD, and links her PTSD to active service. Therefore, the Board finds that the evidence submitted by the appellant and added to the claims file since the June 2006 rating decision is new and material and the claim of entitlement to service connection for major depression is reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including psychoses, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Otherwise, the law requires verification of a claimed stressor. The provisions of 38 C.F.R. § 3.304(f)(3) are limited to stressors arising from hostile military or terrorist acts toward the U.S. military committed by individuals or entities, rather than acts of one service member directed at another service member. Hostile criminal actions, such as the harassment and personal assault stressors alleged by a Veteran are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran claims that she is entitled to service connection for PTSD because it is the result of two sexual assaults incurred during service at Fort Huachuca, Arizona, both in early to mid 1970. She testified at the videoconference hearing that the first alleged assault was committed by a stranger who drugged her drink, and the second occurred while she was on a date, by someone she knew. She did not report either assault. She further testified that after the assaults she began doing things to get kicked out of the military. Specifically, she stated that she began drinking and smoking, and on one occasion she fell asleep at work (which she states resulted in an Article 15). The Veteran also testified that she got married so that she could leave the military. A review of the Veteran's service treatment records does not reflect that the Veteran reported or was treated for any personal assaults. The Veteran's service personnel records indicate that her conduct was noted to be excellent during basic training from August 1969 to October 1969, as a telephone switchboard operator in Fort Gordon, Georgia from October 1969 to January 1970, and again as a telephone switchboard operator in Ft. Huachuca, Arizona from January 1970 to June 1970. The service personnel records further note that she was promoted to Specialist Four in May 1970. In August 1970, as SP4, the Veteran received only a good conduct rating. In October 1970 the Veteran received an Article 15 and was demoted for misconduct. The Record of Proceedings Under Article 15 states that the Veteran used official telephone facilities for personal calls, which was noted to be unauthorized. However, it also appears that the Veteran received an excellent conduct rating from October 21, 1970 to March 5, 1971 when she was discharged. In January 1971 the Veteran requested discharge by reason of marriage. A review of the post-service medical evidence (specifically the April 2012 addendum opinion) reflects that the Veteran has a PTSD diagnosis related to her claimed in-service assaults, and a diagnosis of major depressive disorder which is related to her PTSD diagnosis. There are also several VA treatment records, to include one dated in January 2011, which reflects a diagnosis of PTSD related to military sexual trauma. Therefore, the issue to be resolved is whether there is credible supporting evidence of either sexual assault. This question is one of fact to be resolved by VA adjudicators alone. Wilson v. Derwinski, 2 Vet. App. 614 (1992); Wood v. Derwinski, 1 Vet. App. 190 (1991). In this regard, and as previously noted, where PTSD is based on a claimed in-service personal assault, 38 C.F.R. Part 3 sets forth that evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor. Such evidence includes, but is not limited to, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5) (2012). A September 2008 lay statement from an individual (M.L.W.) who has known the Veteran most of her adult life, indicates that the Veteran returned home from service as a different person. She was described as moody, with a changed personality. She would cry all the time, especially after a few drinks, which itself was new (it was noted that the Veteran never drank before). The letter goes on to state that it was a long time before the Veteran could talk about what had happened to her during service. The Veteran underwent a VA examination in April 2011. It appears that the April 2011 VA examiner interpreted the evidence and examined the Veteran, and determined that a personal assault occurred. Specifically, the examiner stated in the April 2012 addendum opinion, that the Veteran has participated in mental health treatment for PTSD and major depressive disorder for several years, and in addition to sleep and mood disturbance, the Veteran endorsed PTSD symptoms that are consistent with a history of sexual assaults. The examiner concluded that the Veteran meets the diagnostic criteria for PTSD secondary to military sexual trauma. The examiner further concluded that the Veteran's depressive disorder is related to her PTSD diagnosis. The examiner reviewed the claims file, examined the Veteran, and performed psychometric tests on the Veteran, the results of which were determined by the examiner to be valid. The Board notes that the Veteran is competent to report the circumstances of the assaults she experienced in service because they are based on her own direct observations. Moreover, the Board finds these statements to be credible, as the Veteran has reported a consistent history of stressors in service throughout the period on appeal. Similarly, the September 2008 lay statement of record is both competent and credible. As noted above, there is little contemporaneous evidence available to verify the Veteran's stressors. However, the Board finds that the VA medical opinions contained in the April 2011 VA examination and April 2012 addendum opinion are persuasive as to the existence of the Veteran's stressors. Moreover, they are based on facts supported by the record and contain an adequate rationale. Finally, although not entirely consistent, there is evidence of a reduction in conduct grade from excellent to good in July or August 1970. This, as well as the Article 15 due to misconduct (which occurred after previous excellent conduct ratings and promotions, and after the alleged assaults), both generally weigh in favor of the Veteran's allegations of in-service personal assaults. In sum, the Board finds that the evidence of record is at least in relative equipoise. That is, there is at least an approximate balance of evidence both for and against the actual occurrence of the in-service stressor(s). Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because a diagnosis of PTSD based on an in-service stressor has been offered (and a diagnosis of major depression has been determined to be related to the PTSD diagnosis), and because competent and credible supporting evidence that the in-service stressors occurred has been offered, service connection for acquired psychiatric disabilities, currently diagnosed as PTSD and major depression, is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for major depression is reopened, and the claim is granted to this extent. Entitlement to service connection for acquired psychiatric disabilities, currently diagnosed as PTSD and major depression, is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to the Veteran's claim for service connection for fibromyalgia, the Board notes that in its December 2010 remand, the RO/AMC was instructed to schedule a VA examination in order to determine the etiology of the Veteran's currently diagnosed fibromyalgia. The examiner was instructed to provide an opinion as to whether it is at least as likely as not that the Veteran's current fibromyalgia is etiologically related to her military service. The examiner was instructed to provide a complete rationale for any stated opinion. It was further instructed that the examiner must acknowledge and discuss the Veteran's lay statements and hearing testimony that she had fibromyalgia in service. The Veteran underwent the requested examination in April 2011. The examiner reviewed the claims file and examined the Veteran. The examiner stated that the Veteran has current symptoms of fibromyalgia, which include depression and musculoskeletal symptoms, and which are constant or nearly constant. The examiner then concluded that there is no pathology or medical record confirmation of a diagnosis of fibromyalgia. The examiner further stated that the Veteran has well-documented left shoulder degenerative joint disease and adhesive capsulitis which is the reason she is currently receiving both medical and physical therapy treatment. However, the examiner stated that upon review of the records, there is no documentation that a diagnosis of fibromyalgia has ever been made, and that the Veteran does not meet VA's criteria for fibromyalgia. The examiner further stated that the Veteran's depression is well-documented and related to her past stress-induced experiences and not from a fibromyalgia diagnosis. The examiner went on to state that there is no documentation per the Veteran's history or in her service treatment records to indicate that she was ever seen or evaluated for any of these complaints until years after her service time. Therefore, the examiner concluded that there is no relationship between her present symptoms and her military service. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the opinion is based upon an inaccurate factual premise, and it does not contain an adequate rationale for the opinion. Notably, the examiner stated that the medical records do not document a diagnosis of fibromyalgia. However, the VA treatment records reflect multiple diagnoses of fibromyalgia. Moreover, the examiner based the negative opinion on the lack of any documentation in the Veteran's service treatment records of any related complaints. However, the December 2010 remand instructed the RO to acknowledge and discuss the Veteran's lay statements regarding her fibromyalgia symptoms in service. Therefore, a remand is required for a medical opinion based upon an accurate review of the Veteran's documented medical history and one that includes a complete rationale. In addition, the Board notes that the April 2011 VA examiner stated that the Veteran currently experiences fibromyalgia symptoms of depression and musculoskeletal symptoms. In this regard, service connection may be established on a secondary basis for a disability, which is proximately due to, the result of, or chronically aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310(a) and (b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). As such, on remand, an opinion should also be obtained regarding whether the Veteran's current fibromyalgia is due to, the result of, or aggravated by, the Veteran's service-connected acquired psychiatric disabilities, currently diagnosed as PTSD and major depression. Regarding the Veteran's claim for TDIU, the Board notes that further development and adjudication of the Veteran's claim for service connection for fibromyalgia, as well as the RO's implementation of the Board's decision granting service connection for acquired psychiatric disabilities, currently diagnosed as PTSD and major depression, may affect the Veteran's claim for TDIU. Therefore, it would be inappropriate at this time to enter a final determination on the issue of entitlement to TDIU. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Finally, the Board notes that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. A review of the record reflects that the SSA disability decision is of record. The SSA decision notes that the Veteran is disabled primarily due to severe low back pain and depression. Although most of the private treatment records referred to in the SSA decision are of record, the record does not contain any indication that the medical records on which the SSA decision was based were requested. Additionally, the claims file specifically does not contain the medical records from Dr. Tomaszek, records which are referred to in the SSA decision. Moreover, it does not appear that the medical records on which the SSA decision was based are of record or were otherwise considered by the RO in conjunction with the Veteran's claim for service connection for fibromyalgia. In sum, the SSA records appear relevant to the Veteran's claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Because the medical records on which the SSA decision was based may be pertinent to the adjudication of the Veteran's claims, the Board finds that reasonable efforts should be made to obtain these records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-73 (1992) (noting that VA has a duty to obtain SSA records when they may be relevant). Therefore, the RO/AMC should attempt to obtain these records on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and obtain all medical records considered to make the February 1992 decision granting the Veteran SSA disability benefits. If it becomes reasonably certain that such records do not exist or that further efforts to obtain them would be futile, it should be so noted in the claims file, and the Veteran must be notified of any inability to obtain these records. 2. Return the claims file to the VA examiner who conducted the April 2011 fibromyalgia examination, or a suitable substitute. The examiner must review the claims file, to include a copy of this remand, and provide an opinion as to the following: Whether it is at least as likely as not (ie., 50 percent or better probability) that the Veteran's currently diagnosed fibromyalgia is etiologically related to service, to include the Veteran's competent lay statements that she suffered from symptoms of fibromyalgia during service. Whether it is at least as likely as not (ie., 50 percent or better probability) that the currently diagnosed fibromyalgia is due to or chronically aggravated (permanently worsened beyond normal progression of the disorder) by the Veteran's service-connected acquired psychiatric disabilities currently diagnosed as PTSD and major depression. If the fibromyalgia is determined to be aggravated by the service-connected psychiatric disabilities currently diagnosed as PTSD and major depression, the examiner should quantify the degree of aggravation if possible. In rendering the above requested opinions, the examiner must assume that the Veteran has a current diagnosis of fibromyalgia, as indicated in the October 2006, October 2007, January 2009 and March 2010 VA treatment records, and in the March 2007 private treatment record from Pitt County Memorial Hospital. The rationale for all opinions offered must be provided. 3. Once the above actions have been completed, the RO/AMC must re-adjudicate the Veteran's claims. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs