Citation Nr: 1804249 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-05 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a left ankle disorder. 4. Entitlement to service connection for a low back disorder. 5. Entitlement to service connection for a sleep disorder. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to August 1990 and from November 1990 to September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO). In November 2015, the Board issued a decision which denied entitlement to service connection for a left knee disorder, a left ankle disorder, a low back disorder, tinnitus, and a sleep disorder, and several other issues. The November 2015 Board decision also remanded the issue of entitlement to service connection for an acquired psychiatric disorder to the RO for additional development. The Veteran appealed the Board's November 2015 denial of her claims for service connection for a left knee disorder, a left ankle disorder, a low back disorder, tinnitus, and a sleep disorder to the U.S. Court of Appeals for Veterans Claims (Court). In September 2017, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR), which vacated the Board's November 2015 denial of these claims and remanded the claims to the Board for additional development and consideration. Since the RO last considered the Veteran's claims, additional evidence has been associated with the claims file. However, in December 2017, the Veteran's representative submitted a waiver of RO consideration of this evidence. Accordingly, the Board may proceed with adjudication of this appeal. 38 C.F.R. § 20.1304 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND I. Left Knee and Left Ankle The August 2017 JMPR found that the January 2015 VA addendum opinion relied upon by the Board in its November 2015 decision did not comply with a prior remand directive from the Board's December 2014 Remand. Specifically, the JMPR noted that the examiner did not address the Veteran's contentions that her service-connected right ankle sprain altered her gait to cause or aggravate her left knee and left ankle disorders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders). Accordingly, the JMPR concluded that a new VA opinion is required which complies with the terms of the Board's December 2014 Remand. II. Low Back The August 2017 JMPR noted that a February 2015 VA examination report relied upon by the Board in its November 2015 decision was not located in the record. Accordingly, the RO should obtain a copy of the February 2015 examination report and associate it with the record. III. Tinnitus Review of the record reflects that a new VA examination and opinion are required with respect to the Veteran's claim for entitlement to service connection for tinnitus. Although the Veteran was provided with a VA examination addressing the etiology of her tinnitus in September 2010, the opinion provided is not adequate. During the September 2010 VA examination, the Veteran reported in-service acoustic trauma from scud missiles and gunfire. She stated that she was a combat medic who served in Iraq. She reported the onset of her tinnitus in 1999. Based on the Veteran's reports that her tinnitus began in 1999, after service discharge, the VA examiner concluded that her tinnitus was not etiologically related to service. However, VA Training Letter 10-02 at 5 (Mar. 18, 2010), acknowledges that "[t]he onset [of tinnitus] may be gradual or sudden, and . . . [t]innitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered." Because the September 2010 VA opinion does not address the possibility of delayed-onset tinnitus, a new VA examination should be provided. IV. Psychiatric Disorder In its January 2017 Remand, the Board requested that the RO obtain a VA addendum opinion to determine the nature and etiology of each psychiatric disorder that may be present or was present during or proximate to the claim. The Board observed that the record showed diagnoses of numerous psychiatric disorders, including major depressive disorder, generalized anxiety disorder, and mood disorder, not otherwise specified. A VA addendum opinion was provided in January 2017, but review of the opinion reveals it to be inadequate. The VA examiner concluded (without examining the Veteran) that "[b]ased on the available evidence of substance abuse including marijuana, cocaine, alcohol, and methamphetamine since 1991. [sic] [n]o diagnosis of PTSD or any mental disorder can be made." The examiner explained that, because the DSM criteria "state, specifically, that symptoms may not be attributable to the effects of a substance[,]" "during no time since the Veteran's discharge can a diagnosis of any mental disorder be substantiated" and that "[a]ny diagnoses made during the time of the substance abuse, which persists to the most recent note in December of 2016 (the Veteran reported occasional alcohol use), is clearly an [sic] unmistakably in error, given the DSM criteria that symptoms not be attributable to the effects of a substance." The January 2017 opinion suggests that the diagnosis of a psychiatric disorder is excluded when there is any history or current use of any substance, even when occasional. However, the DSM does not suggest such a blanket determination, as it states that a diagnosis of a psychiatric disorder may not be made when the symptoms complained of are attributable to the physiological effects of a substance. This does not suggest that a veteran could not have a psychiatric disorder when there is a history of substance abuse, just that a psychiatric disorder diagnosis should not be based on symptoms which were attributable to the effects of that substance. The January 2017 opinion is particularly problematic in light of the numerous diagnoses of psychiatric disorders in in the medical records made with the knowledge of the Veteran's substance use. The January 2017 VA opinion does not identify the Veteran's symptoms which were attributable to substance use, or otherwise explain how all of the Veteran's psychiatric symptoms reported throughout the years were the physiological effects of substance use rather than a diagnosed psychiatric disorder. Based on the foregoing, the Board finds the January 2017 VA opinion inadequate, and a new VA examination should be provided. V. Sleep Disorder The August 2017 JMPR found the issue of entitlement to service connection for a sleep disorder to be inextricably intertwined with the claim for entitlement to service connection for a psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Additionally, the August 2017 JMPR noted that a November 2011 compensation and pension exam inquiry noted the Veteran's reports of difficulty sleeping during service, and instructed the examiner to clarify whether there was a chronic sleep disorder present which was best classified as a chronic mental disorder, such as primary insomnia, and that such clarification was not obtained. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the January 2015 VA opinion, if available. After reviewing the claims file, the examiner should provide an addendum medical opinion addressing whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's left knee and left ankle disorders were caused or aggravated by her service-connected right ankle sprain with degenerative arthritis. Aggravation is defined for legal purposes as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner should specifically address the Veteran's contentions that her right ankle disability altered her gait, putting more weight and strain on her left knee and ankle. A complete rationale for all opinions expressed must be provided. If the examiner who provided the January 2015 opinion is not available, the RO should obtain a new opinion. The examiner's opinion must be based upon a complete review of the evidence contained in the claims file, as well as the Veteran's lay statements of record. The rationale for any opinion expressed must be set forth. If deemed necessary by the examiner in order to provide the requested opinion, schedule a VA examination of the Veteran. 2. The RO should obtain a copy of the February 2015 VA spine examination report and associate it with the claims file. All attempts to obtain this record must be documented in the claims file. The Veteran and her representative must be notified of any inability to obtain the requested document. 3. Provide the Veteran with a new VA audiological examination to determine the nature and etiology of her tinnitus. After reviewing the claims file, to include a copy of this remand, the examiner should determine whether it is at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's tinnitus is related to service, to specifically include her claimed in-service noise exposure. In providing this opinion, the examiner should specifically consider and discuss the provisions of VA Training Letter 10-02: that the onset of tinnitus may be gradual or sudden, and individuals are often unable to identify when tinnitus began; that tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs; and that, therefore, delayed-onset tinnitus must be considered. A complete rationale for all opinions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide complete explanations stating why this is so. 4. Provide the Veteran with a new VA psychiatric examination to determine the nature and etiology of all psychiatric disorders demonstrated proximate to or during the appeal period, including PTSD, major depressive disorder, generalized anxiety disorder, mood disorder, and all others. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be completed. Following review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: a. Identify all psychiatric disabilities demonstrated of record since service, even if resolved, as well as all psychiatric disabilities demonstrated on current clinical examination. b. For each psychiatric diagnosis identified, and to specifically include major depressive disorder, generalized anxiety disorder, mood disorder, the examiner must opine whether it is at least as likely as not (50 percent probability or more) that the disability manifested in service or is otherwise causally or etiologically related to any event in military service. The examiner should specifically address the Veteran's April 1991 Report of Medical History, in which she reported that she experienced depression or excessive worry and nervous trouble. A complete rationale must be provided for all opinions reached. 5. Provide the Veteran with a VA examination to determine the existence and etiology of a sleep disorder. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary special studies or tests must be accomplished. After a thorough review of the Veteran's claims file, to include the Veteran's statements of record, her service treatment records, the post-service medical evidence, and a discussion of each, the examiner must provide the following opinions: a. Does the Veteran have a current diagnosis of a disability manifested by difficulty sleeping? b. If the Veteran has a disability manifested by difficulty sleeping, is it at least as likely as not (a 50 percent probability or greater) that the diagnosed disorder was caused by or incurred during active duty service, to include whether it first manifested during service? The examiner is asked to specifically address the evidence in the service treatment records noting the Veteran's reports of frequent trouble sleeping. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. 6. The RO must notify the Veteran that it is her responsibility to report for the examinations and to cooperate in the development of the claims. 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 (2017). 7. Thereafter, readjudicate the issues on appeal, considering all evidence of record. If any benefit sought is not granted to the fullest extent, issue a Supplemental Statement of the Case and afford the Veteran an appropriate opportunity to respond. The case should be returned to the Board, as warranted. 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).