Citation Nr: 1805656 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-31 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection, to include on a secondary basis, for an acquired psychological disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Honolulu, Hawaii, Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran filed a claim for "PTSD/Mental Health concerns due to traumatic experiences while service in the Army." In an April 2015 statement in support of claim for service connection for PTSD, the Veteran asserted it was his understanding that his claim was to be filed under something other than PTSD since his in-service incident was not combat or terrorist related. Lastly, in his December 2016 VA Form 9, Substantive Appeal, the Veteran asserted that he had been diagnosed with a mental health condition due to traumatic experience from service; specifically due to an in-service injury. The Veteran additionally asserted that his claim encompassed all psychological disabilities in accordance with Clemons v. Shinseki, 23 Vet.App. 1 (2009). In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding and the psychological diagnoses of record, the Board has recharacterized the claim as reflected on the title page. In July 2016, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to issue a statement of the case (SOC). The Board notes that the RO issued a SOC in November 2016 which has been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In June 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the delay, however a remand is necessary and further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A, and to afford the Veteran an adequate VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). A review of the claims file shows that during service the Veteran sustained a traumatic injury to his left hand resulting in the amputation of the distal phalanx of his middle finger; a disability for which he is currently service-connected. A January 1979 service treatment record (STR) shows that following the traumatic injury, the Veteran requested a permanent profile and reported that he feared he would not be able to perform his job. The physician found the Veteran did not currently have sufficient problems to warrant a medical profile and that it was only his fear that caused him to seek a profile. The Veteran underwent a February 2015 VA mental health initial evaluation by a VA substance abuse social worker who noted the following symptoms: social avoidance, easy startle effect, hypervigilance, panic attacks, guilt/self-blame; fatigue; flight of ideas/racing thoughts; trouble concentrating; nightmares; frequent awakenings; and trouble returning to sleep. The Veteran reported that the most distressing event of his military career occurred while changing a piece of machinery and a cable on a wrecker slacked and his finger got stuck and then amputated. Since the in-service incident, the Veteran reported having nightmares 2-3 times per week with violent thoughts of unexpressed rage. Per a Beck depression inventory score of 28, the Veteran was found moderately depressed. The VA social worker noted a diagnostic impression of "309.9 [unspecified adjustment disorder] other trauma related to from the accident while in military service." The Veteran was referred for a psychological evaluation. A February 2015 VA psychological evaluation shows the Veteran reported injuring his left hand during service resulting in the amputation of his finger. He further reported blaming himself for the injury and stated he had buried the memory. He currently reported experiencing nightmares about working in the Army. The Veteran also endorsed violent outbursts, hypervigilance, anxiety in crowds, and having paranoia about getting into confrontations with people. The Veteran underwent a VA examination in April 2015. The examiner diagnosed the Veteran with GAD and indicated the Veteran did not have a diagnosis for PTSD that conformed to the DSM-5 criteria. The examiner found that the diagnosed GAD resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported serving in the Army as a wheeled vehicle mechanic. He was not exposed to combat situations. The Veteran did report injuring his hand during service while performing mechanical work in the motor pool. The in-service injury occurred when his hand was smashed between two mechanical parts and he lost part of his finger. Current symptoms included anxiety and chronic sleep impairment, fatigue, restlessness and impatience, and impaired concentration. With regard to the diagnosed GAD, the examiner found no proximal link to service and opined that it was "less likely than not caused by or a result of military service." At a June 2017 Board videoconference hearing, the Veteran testified that following the in-service injury to his left hand, he was depressed and angry about the injury and that he could no longer work as a mechanic. He further testified that he had a tool and dye apprenticeship lined up which he had to abandon due to his in-service injury. The Board notes that during the hearing, the representative asserted that the Veteran's treating psychiatrist, Dr. MD, diagnosed the Veteran with PTSD and provided a positive nexus opinion as to etiology. However, a review of the VA medical records only shows that Dr. MD has provided a diagnosis of PTSD pursuant to DSM-5 criteria. While Dr. MD did note the Veteran's in-service injury and nightmares related to service, she did not go as far as stating the diagnosed PTSD was directly related to the in-service incident. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). Regarding the April 2015 VA examination, while the examiner found no proximal link to service and provided a negative nexus opinion, the examiner did not provide any rationale for his medical opinion. Significantly, the examiner did not address contemporary VA medical records noting the Veteran's primary symptoms of nightmares related to his traumatic left hand injury which reportedly occurred 2-3 times per week and recurrent in nature. Similarly, the February 2015 VA social worker only noted a diagnostic impression for adjustment disorder due to service-related trauma with no rationale provided. Based on the diagnostic impression, the Veteran was referred for a psychological evaluation. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Therefore, the Board finds the April 2015 VA examination inadequate and a new VA examination should be provided. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, following the April 2015 VA examination, a May 2015 VA medical record shows the Veteran reported to Dr. MD that during service his NCO made an unwelcomed sexual advance during a party. The Veteran stated that he managed to not get violent, packed up his belonging and told a friend that they needed to go. Dr. MD again diagnosed the Veteran with PTSD. It is unclear from the record whether the Veteran was claiming an in-service sexual assault. Claims for PTSD based on military sexual or personal assault may be supported by markers or other evidence, of which the Veteran has been notified. Further, a VA examination and opinion should be requested as to whether the occurrence of the reported sexual assault stressor has been corroborated by the available evidence, and whether there is a current PTSD diagnosis due to such stressor. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Further, a VA examination and opinion should be requested regarding the nature and etiology of any other diagnosed mental health disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Lastly, the Board notes that during the June 2017 Board videoconference hearing, the Veteran asserted receiving mental health treatment in the 1990s. A review of the claims file does not reflect that the RO has attempted to obtain those records. Thus, the RO should assist with obtaining any outstanding treatment records identified by the Veteran. 38 U.S.C. § 5103A (2012). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice that is specific to claims of PTSD based on personal assault. 2. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 3. Then, schedule the Veteran for a VA examination with a psychiatrist or a psychologist. Preferably, the examination should take place at a Maui location. The examiner must determine whether the Veteran currently suffers from an acquired psychological disorder including PTSD, GAD, depression and/or adjustment disorder. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. Specifically state whether each criterion for a diagnosis of PTSD is met. Otherwise, provide a diagnosis for any acquired psychological disorder. (b) If a diagnosis of PTSD is appropriate, identify each stressor event upon which the diagnosis is based. (c) With respect to any other psychological disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychological disorder is related to any incident of the Veteran's active service. (d) With respect to any other psychological disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychological disorder was caused or aggravated by a service-connected disability, to include amputation of the distal phalanx of the left middle finger. A comprehensive rationale must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ Thomas H. O'Shay 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).