Citation Nr: 1646952 Decision Date: 12/15/16 Archive Date: 12/30/16 DOCKET NO. 15-11 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial compensable rating for migraines headaches. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected status post excision of basal cell carcinoma of the left cheek. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) with the United States Marine Corps Reserves (USMCR) from December 1994 to October 1995, and active duty service from May 1997 to September 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran had a current diagnosis of anxiety disorder and attention deficit hyperactivity disorder (ADHD). This appeal is expanded from the Veteran's original claim of posttraumatic stress disorder (PTSD) to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (a) (West 2014); 38 C.F.R. § 3.159 (c), (d) (2015). At the Veteran's Board hearing in November 2015, the Veteran asserted that the frequency and severity of his headaches has worsened. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, a new VA examination is necessary. With regard to the Veteran's claim for an acquired psychiatric disorder, the Board notes that the Veteran was afforded a VA examination in May 2013. The examiner noted that the Veteran had a diagnosis of ADHD and anxiety disorder. The examiner stated that the Veteran "endorsed symptoms that are consistent with the diagnosis of ADHD, which is not caused by military. Associated with this and with his history of abuse, [the Veteran] endorsed symptoms of a co-morbid anxiety disorder that was present prior to military service, but which was exacerbated as a result of his basal cell carcinoma, which was diagnosed during his military service, and as a result of his witnessing another soldier commit suicide." In a May 2013 addendum opinion the examiner opined that "there is no medical evidence to support that the Veteran's anxiety disorder was caused by basal cell carcinoma. Review of PTSD exam reveals that the anxiety disorder at least as likely as not existed prior to service. It is also my opinion based on available medical evidence that the Veteran's anxiety disorder was not aggravated by in service events. Rationale is that there are multiple EMR entries relating a myriad of conditions which have been linked to increasing anxiety i.e. there is no individual event that rises to 50%." Here, the May 2013 examiner and the May 2013 addendum opinion failed to use the correct evidentiary standard of clear and unmistakable evidence when formulating the opinion. Furthermore, the rationale provided in the May 2013 addendum opinion seems to suggest that there needs to be a specific in-service event that caused or aggravated the Veteran's anxiety disorder. However, the Board notes that a multiple events, taken together, are sufficient. Therefore, on remand, the examiner must provide an opinion utilizing the correct evidentiary standard and include a full rationale and discussion of the facts and medical principles involved. Additionally, at his Board hearing, the Veteran identified outstanding VA outpatient treatment records that have not yet been associated with his claims file. Specifically, the Veteran asserted that he previously received treatment once a week but now goes once a month to a VA psychiatrist at the VA Causeway Street Clinic. Thus, these treatment records must be obtained as they relate to the issues currently on appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the VA Causeway Street Clinic and any other outstanding VA treatment records. 2. After the above records have been obtained, afford the Veteran a VA examination to determine the current severity of his migraine headaches. All indicated evaluations, studies and tests deemed necessary should be accomplished and all findings reported in detail. The examiner should specifically identify all symptoms and impairment associated with the Veteran's headaches, noting their frequency and severity; whether or not they are prostrating and/or incapacitating; the treatment they require; and their impact on occupational and everyday functioning. The examiner should explain the rationale for all opinions in detail, citing to supporting factual data, as indicated. 3. Return the Veteran's claims file to the VA examiner who drafted the May 2013 report, if available, to obtain an addendum opinion. If the examiner who drafted the report is unavailable, the opinion should be rendered by another appropriate medical professional. The need for a new examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner. The examiner shall indicate in the addendum report that the claims file was reviewed. Following a thorough record review, the examiner is requested to provide an addendum opinion and/or address the following: a) Does the evidence clearly and unmistakably show (i.e., it is undebatable) that the Veteran's ADHD existed prior to service? b) If there is clear and unmistakable evidence that the Veteran's ADHD preexisted his active duty service, is there clear and unmistakable evidence that his ADHD was not aggravated (permanently worsened) beyond its natural course during active service? c) If there is not clear and unmistakable evidence that the Veteran's ADHD preexisted his active duty service, is it at least as likely as not (50 percent probability or greater) that the Veteran's ADHD had its onset in service or is otherwise attributable to his service? d) Next, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the Veteran's anxiety disorder existed prior to service? e) If there is clear and unmistakable evidence that the Veteran's anxiety disorder preexisted his active duty service, is there clear and unmistakable evidence that his anxiety disorder was not aggravated (permanently worsened) beyond its natural course during active service? f) If there is not clear and unmistakable evidence that the Veteran's anxiety disorder preexisted his active duty service, is it at least as likely as not (50 percent probability or greater) that the Veteran's anxiety disorder had its onset in service or is otherwise attributable to his service? g) The Veteran has asserted that he believes his psychiatric disorder was caused by his service-connected status post excision of basal cell carcinoma of the left cheek. The examiner is asked to opine: Whether the Veteran's ADHD is proximately due to OR aggravated by his service-connected status post excision of basal cell carcinoma of the left cheek; AND Whether the Veteran's anxiety disorder is proximately due to OR aggravated by his service-connected status post excision of basal cell carcinoma of the left cheek. If any opinion cannot be rendered without resorting to speculation, the VA physician should explain why it would be speculative to respond. 4. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ WAYNE M. BRAEUER 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).