Citation Nr: 1805067 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-11 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for insomnia, to include as secondary to a service-connected disability. 2. Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with depressed mood, adjustment disorder with mixed disturbances, generalized anxiety, recurrent moderate major depression, intermittent explosive disorder, and mood disorder, and to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's grandfather ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 17, 1999, to November 9, 1999, and in the Navy from June 19, 2000, to July 21, 2000. The case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In May 2014 and January 2017, this matter was remanded for additional evidentiary development. As will be discussed further below, pertaining to the issues of entitlement to service connection for insomnia, and entitlement to service connection for an acquired psychiatric disability, the Board finds that an additional remand for further evidentiary development is necessary. In March 2013, the Veteran and his grandfather presented testimony in a Travel Board hearing before the undersigned. A copy of the transcript has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Introduction, this matter was previously remanded by the Board in January 2017. However, for the reasons provided below, the Board finds that an additional remand is necessary. I. Acquired Psychiatric Disabilities In its January 2017 remand, the Board directed the AOJ to obtain an addendum opinion regarding the etiology of the Veteran's acquired psychiatric disabilities. The examiner was directed to provide an opinion, and if needed to provide the requested opinion, the Veteran was to be afforded an additional VA examination. Accordingly, the VA examiner scheduled the Veteran for a VA examination in October 2017, and the Veteran failed to report to such examination. No addendum opinion has been provided. After a review of the electronic claims file, the Board remands this matter once again to obtain a VA addendum opinion regarding the etiology of the Veteran's diagnosed acquired psychiatric disorders. Primarily, the Board notes that an addendum opinion is to be furnished, and if no such opinion can be provided based on the evidence of record without resorting to speculation, an explanation of such must be provided. If it is again determined that an additional VA examination is necessary in order to provide the requested opinions, the Board remands this matter to permit the Veteran another opportunity to appear for a VA psychiatric examination. The Board notes that the Veteran's December 2017 Appellate Brief concedes the following: "The appellant failed to report for scheduled DVA examinations requested in accordance to the remand order. The appellant was contacted several times to reschedule his examinations however, no response to date." However, the Board also recognizes that the Veteran has consistently appeared for VA examinations and continuous VA treatment, to include VA treatment in the consecutive months leading up to October 2017. Therefore, the Board remands this matter to provide the Veteran another opportunity to report to any scheduled VA examinations. The Veteran should understand that VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran's claim, including attending VA exams. See, e.g., 38 C.F.R. §§ 3.159 (c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records) and 3.655(b) (setting forth potential consequences when a veteran fails to appear for a scheduled examination). The Veteran should be aware, that a failure to appear at a scheduled examination without good cause will result in a determination based on the record. II. Insomnia In its January 2017 remand, the Board directed the AOJ to provide the Veteran a VA examination of his asserted insomnia. Although the SSOC asserts that the Veteran failed to appear for a scheduled VA examination, a July 2017 Request for Physical Examination indicates that the request was rejected with a note that states, "we are NOT to be performing sleep studies at this time as they are not ready yet." Accordingly, the October 2017 VA examination report indicates the Veteran's failure to report for a Mental Disorder DBQ, but does not indicate any failure to report for a scheduled VA examination concerning the Veteran's asserted insomnia. After a review of the electronic claims file, the Board remands this matter once again to provide the Veteran with a VA examination to determine the current nature and etiology of his asserted insomnia disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Again, the Veteran is reminded that VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran's claim, including attending VA exams. See, e.g., 38 C.F.R. §§ 3.159 (c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records) and 3.655(b) (setting forth potential consequences when a veteran fails to appear for a scheduled examination). The Veteran should be aware, that a failure to appear at a scheduled examination without good cause will result in a determination based on the record. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant outstanding VA treatment records and any relevant outstanding private treatment records, should they exist. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. 2. Following completion of the above, the AOJ should refer the Veteran's claims file to the VA examiner who conducted the July 2014 VA psychiatric examination; or if unavailable to another examiner with sufficient expertise to provide the requested opinions. If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examination. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequence for failure to report for a VA examination without good cause for an original claim may negatively affect the outcome of his claim. 38 C.F.R. §§ 3.158, 3.655(2017). The examiner must note that the claims file and this remand have been reviewed. The VA examiner is to opine to the following: (a) The examiner is directed to list all psychiatric disabilities diagnosed during the pendency of this appeal, including, adjustment disorder with mixed disturbances, generalized anxiety, recurrent moderate major depression, intermittent explosive disorder, and mood disorder, and specifically state whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder (including adjustment disorder with mixed disturbances, generalized anxiety, recurrent moderate major depression, intermittent explosive disorder, and mood disorder) had its onset in service or is otherwise etiologically related to the Veteran's service. (b) The examiner must also determine if any diagnosed psychiatric disorder (including adjustment disorder with mixed disturbances, generalized anxiety, recurrent moderate major depression, intermittent explosive disorder, and mood disorder) was caused or aggravated (i.e., permanently worsened beyond the natural progression of the disorder) by either the service-connected left ankle disability or the service-connected low back disability. The examiner must provide a complete rationale for all opinions offered. In this regard, the examiner should address the Veteran's assertions (to include his March 2013 Travel Board hearing testimony) and his post-service medical treatment and diagnoses of adjustment disorder with mixed disturbances, generalized anxiety, recurrent moderate major depression, intermittent explosive disorder, and mood disorder. See April 2008 to March 2013 private treatment records. If for any reason (to include any failures to report for examination) the examiner indicates that he or she cannot so opine without resort to speculation (based on the evidence of record), he or she must provide reasons as to why this is so; and state whether the inability is due to the limits of scientific or medical knowledge or whether there is additional evidence that would permit the needed opinion to be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion it is as medically sound to find in favor of the proposition as it is to find against it. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Following completion of directive (1), arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current insomnia. The Veteran is hereby notified that it is his responsibility to report for his scheduled examination and to cooperate in the development of the claim. The consequence for failure to report for a VA examination without good cause for an original claim may negatively affect the outcome of his claim. 38 C.F.R. §§ 3.158, 3.655(2017). The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The VA examiner is to opine to the following: (a) The examiner should determine whether it is at least as likely as not (a 50 percent probability or more) that any current insomnia had its onset in service, or is otherwise related to the Veteran's military service. (b) The examiner must also determine if either the any current insomnia was aggravated (i.e., permanently worsened beyond the natural progression of the disorder) by either a left ankle disability or low back disability. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion it is as medically sound to find in favor of the proposition as it is to find against it. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case (SSOC) and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 A. PAPPAS 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) (2017).