Citation Nr: 1615553 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 10-38 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, adjustment disorder, and generalized anxiety disorder, as secondary to service-connected lumbosacral strain with lumbar facet arthropathy and bilateral lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1986 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issues by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In light of the multiple psychiatric diagnoses of record, the Board has recharacterized the issue as shown on the title page to encompass all acquired psychiatric disorders diagnosed during the pendency of the appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of the claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim). In December 2012, the Board found that the Veteran had submitted new and material evidence sufficient to reopen his claim for service connection for depression. The Board then remanded the Veteran's reopened claim to the agency of original jurisdiction (AOJ) for additional development. The case has now returned to the Board for further review. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A March 2011 VA treatment record diagnosed the Veteran with anxiety disorder, not otherwise specified (NOS), and adjustment disorder with depressed and anxious mood. With regard to the Veteran's adjustment disorder with depressed and anxious mood, the treatment record indicated that the Veteran had only one stressor, which was back pain. Other VA treatment records diagnose the Veteran with depressive disorder, NOS; polysubstance abuse disorder, in remission; and generalized anxiety disorder. See, e.g., August 2010 VA Mental Health Note; February 2009 VA Mental Health Note; September 2011 VA Mental Health Note; September 2012 VA Mental Health Note. In the December 2012 remand, the Board determined that, although the January 2010 VA examiner indicated that the Veteran's psychiatric symptomatology was not related to his service-connected disabilities, the examiner failed to address whether the Veteran's service-connected disabilities aggravated his psychiatric symptomatology. Thus, the Board remanded the Veteran's claim for a new VA examination. In April 2013, the Veteran underwent a new VA examination to address the nature and etiology of any acquired psychiatric disorder. During the examination, the Veteran complained of a depressed mood when thinking about his physical limitations. In response to the question of whether the Veteran now has or has ever had a diagnosed mental disorder, the examiner noted only a diagnosis of polysubstance abuse disorder, in remission; no other diagnoses were listed. With regard to the occupational and social impairment caused by the Veteran's disorder, the examiner noted that his symptoms were not severe enough to interfere with his occupational and social functional and that it did not require continuous medication. The examiner noted a February 2009 VA treatment record wherein the Veteran complained of depression "related to the limitations secondary to his back problems." The examiner also noted the Veteran's history of substance abuse problems, as well as his legal history. The examiner also noted that the Veteran's VA treatment records from 2010 to 2013 noted concerns over finances, providing for family, and the Veteran's appeal. The examiner stated that there was no indication of any significant symptoms or behavioral manifestations of depression besides the Veteran's complaints of feeling "depressed." Overall, the examiner stated that a medical nexus between the Veteran's currently-claimed symptom of depressed mood and his service-connected disabilities could not be provided since the Veteran's depressed mood did not appear to meet clinical significance for a full Axis I diagnosis. The examiner also noted that the Veteran's self-reported symptoms of depression were less likely than not aggravated by his physical disabilities because there were behavioral and other psychological symptoms of depression were not reported at the time of the examination. The examiner also determined that the Veteran was an unreliable historian. The examiner also noted that the Veteran displayed antisocial personality features, and that those features, along with his polysubstance abuse disorder, were not related to his military service. The Board finds that the April 2013 VA examination is inadequate and that a further opinion is necessary. Initially, although the April 2013 VA examiner indicated that the Veteran had never been diagnosed with a mental health disorder other than polysubstance abuse disorder, the examiner failed to acknowledge the Veteran VA treatment records were a formal diagnoses were provided, such as the March 2011 VA treatment record discussed above, or a September 2010 VA Mental Health Note, when the Veteran was given an Axis I diagnosis of anxiety disorder, NOS, and adjustment disorder. Thus, the opinion appears to be based on an inaccurate factual premise, namely that the Veteran has not been diagnosed with an acquired psychiatric disorder other than polysubstance abuse disorder. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Furthermore, if the April 2013 examiner's opinion merely refers to whether an acquired psychiatric disability was present at the time of the April 2013 examination, the Board notes that, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. The Veteran filed his claim for service connection in September 2009. Thus, although the Veteran's symptoms may not have been sufficient for a clinical diagnosis at the time of the April 2013 VA examination, the Veteran's treatment still show valid diagnoses during the pendency of this appeal, and the examiner failed to address those diagnoses. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Given the deficiencies noted above, the Board finds that a further medical opinion from someone other than the January 2010 and April 2013 examiners that is based on a full consideration of the Veteran's documented history and assertions, and supported by a complete, clearly-stated rationale, is needed in order to address the nature and etiology of any acquired psychiatric disorder diagnosed at any point pertinent to his present appeal. The AOJ should only arrange for the Veteran to undergo further examination if deemed necessary in the judgment of a competent medical professional. Finally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. In this regard, treatment records dated through March 20, 2013, have been associated with the record. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records pertinent to the Veteran's claim, and associate them with the record. Such records dated through March 20, 2013 have been associated with the Veteran's claims file. 2. Provide the Veteran's claims file to an examiner to obtain an addendum VA opinion. The need for an additional examination is left to the discretion of the mental health professional selected to write the opinion. The examiner is asked to furnish an opinion with respect to the following questions: a) Identify all diagnoses related to the Veteran's claimed acquired psychiatric disorder that have been present at any time since September 2009, even if those disorders have since resolved. b) Is it at least as likely as not (a 50 percent or higher probability) that any diagnosed acquired psychiatric disorder(s) was caused by, or the result of, his service-connected lumbosacral strain with lumbar facet arthropathy and bilateral lower extremity radiculopathy; or c) Is it at least as likely as not (a 50 percent or higher probability) that any diagnosed acquired psychiatric disorder(s) was aggravated (i.e., worsened beyond its natural progression) by his service-connected lumbosacral strain with lumbar facet arthropathy and bilateral lower extremity radiculopathy. If the examiner determines that there is aggravation, the examiner should state, to the best of their ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The examiner is asked to consider the March 2011 VA treatment record that diagnosed the Veteran with anxiety disorder, NOS, and adjustment disorder with depressed and anxious mood, and noted that he had only one stressor which was back pain. In addition, the examiner is asked to consider the other VA treatment records diagnosing the Veteran with depressive disorder, NOS; polysubstance abuse disorder, in remission; and generalized anxiety disorder. See, e.g., August 2010 VA Mental Health Note; February 2009 VA Mental Health Note; September 2011 VA Mental Health Note; September 2012 VA Mental Health Note. 3. Readjudicate the claim. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ R. FEINBERG 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) (2015).