Citation Nr: 18149705 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-21 289 DATE: November 13, 2018 REMANDED Service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and adjustment disorder with depressed mood is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1999 to April 2001; March 2003 to December 2003; March 2005 to July 2006; and June 2007 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran seeks service connection for PTSD. Although he has only identified a single psychiatric disorder, service treatment records (STRs) and VA treatment records contain diagnoses of other acquired psychiatric disorders, to include an adjustment disorder with depressed mood. Therefore, while not formally adjudicated, the additional diagnosed conditions, together with PTSD, are considered to be within the scope of his service connection claim for an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record). In regard to his claim, the Veteran reported that while he was assigned to the Alpha Company 121st, he witnessed an Iraqi man driving down the wrong way through a road block and his vehicle was shot at by a fellow solider. See January 2015 Statement in Support of Claim for PTSD. The Veteran indicated that the man was ejected from the vehicle and went through a guardrail and the Veteran recalled “walking through brain matter and bones which has a distinct sound.” Also, the Veteran reported that another solider in his company was injured by shrapnel and awarded the purple and bronze star with device. A review of the Veteran’s service personnel records shows that the Veteran’s primary military occupational specialty (MOS) was a carpentry and masonry specialist, and that he served in a designated imminent danger pay area in Iraq from March 2004 to January 2005. He was awarded the Combat Infantryman Badge for participating in ground combat operations under enemy hostile fire on October 2, 2005. A review of the Veteran’s STRs indicates that the Veteran’s enlistment examination reflects a normal psychiatric evaluation in September 1999. Service treatment records dated June 2006 indicate a diagnosis of depressive disorder, not elsewhere classified and a note reflecting “group psychotherapy.” In September 2008, the Veteran’s separation examination indicated that the Veteran was going through family issues causing him to have depression and to seek counseling for his depression. The examiner noted that the Veteran was attending marriage counseling. The examiner indicated that the Veteran was diagnosed with an adjustment disorder. An undated Report of Behavioral Health evaluation found that the Veteran had Axis I- Adjustment disorder with suicidal intention. A September 2008 Memorandum reflects that the Veteran was separated under AR 635-200 Chapter 5-17, Paragraph 1-19, Other Designated Physical or Mental Condition for combat stress related to marital issues, “personal life impairing job performance, which has caused this soldier to be an operational liability in theater.” Post-service, an August 2013 VA medical treatment record shows that the Veteran was diagnosed with PTSD. A VA treatment record dated August 2013 shows that the Veteran was diagnosed Axis I – PTSD, opiate dependence, in sustained full remission; Axis II- personality disorders, deferred. It was noted that the Veteran reported “craziest, weirdest dreams,” difficulty falling asleep and staying asleep, hypervigilance, and mood changes. The Veteran indicated that he attempted to commit suicide in 2009 after returning home from deployment and his “marriage fell apart.” He reported that he experienced symptoms of PTSD including; hypervigilance, insomnia, and mood changes. The Veteran was afforded a VA examination in February 2014 for the purpose of identifying the claimed acquired psychiatric disorder and offering an opinion on etiology. The examiner declined to diagnose the Veteran with any mental health impairments due to the lack of reliable evidence to establish a diagnosis with any degree of reasonable certainty. However, the examiner noted that a personality disorder NOS (provisional) was “suspected but not fully proven.” The examiner opined that it is less likely than not that this Veteran has a reliable DSM 5 diagnosis of PTSD or other mental disorder related to his verified combat stressor military service. The examiner noted that he could not form a mental disorder diagnosis to a reasonable degree of psychological certainty without resorting to mere speculation because he did not find the Veteran to be a reliable historian as a result of numerous inconsistencies, markers of unreliable reporting of PTSD and results of objective testing. In providing a rationale, the examiner indicated that there was no evidence in the STRs of symptoms consistent with PTSD or other chronic mental disorders. The examiner noted that the Veteran’s STRs are quite clear that the Veteran was discharged from military service in 2008 because of an adjustment disorder with depressed mood secondary to severe marital difficulties. However, the February 2014 examiner’s opinion is factually inaccurate. The examiner indicated that there was no evidence in the STRs of symptoms consistent with PTSD or other chronic mental disorders. Service treatment records in December 2000 reflect a diagnosis of “adj react- emotion/conduc” and service treatment records in June 2006 reflect a diagnosis of depressive disorder, not elsewhere classified, and a notation indicating group psychotherapy. The United States Court of Appeals for Veterans Claims has found that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Veteran should be afforded a new VA examination to determine whether he currently has an acquired psychiatric disorder that is due to his active service. Additionally, although service connection cannot be granted for a personality disorder, service connection may nevertheless be granted for a disability superimposed on a personality disorder. 38 C.F.R. § 4.127. As the February 2014 VA examiner diagnosed a personality disorder NOS (provisional), and indicated that it was “suspected but not fully proven,” an opinion must be provided as to the propriety of this original diagnosis and its relationship, if any, to his current disabilities. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of any acquired psychiatric disorders. All indicated tests and studies should be accomplished and the findings reported in detail. a. The examiner should identify and diagnose all acquired psychiatric disorders, to include those that may have resolved during the appeals process. b. The examiner should offer an opinion on whether the Veteran meets the DSM-V criteria for a diagnosis of PTSD. c. If PTSD is found, the stressor relied on should be noted in the record. The Board notes that the examiner should concede in-service combat for the purposes of the examination d. If the diagnosis of PTSD, personality disorder, and an adjustment disorder is not made, the examiner reconcile such a finding with those made in the Veteran’s VA treatment medical records. e. For each assigned current diagnosis, to include PTSD and/or any other acquired psychiatric disorder present, the examiner should be asked to provide an opinion as to whether it is at least as likely as not (a 50 percent, or greater, likelihood) that the current acquired psychiatric disorder(s) was (were) incurred during the Veteran’s service or as a result of an incident or stressor during the Veteran’s service. f. If PTSD is diagnosed and found to be related to the Veteran’s conceded in-service stressor, an opinion must be provided addressing whether his remaining psychiatric disabilities were caused or aggravated beyond its natural progression by his PTSD during the appeal period. g. With regard to the February 2014 VA examiner’s previous diagnosis of personality disorder, the examiner must state whether the Veteran also has an acquired psychiatric disorder that is superimposed upon the personality disorder. In so doing, the examiner must: Directly address the propriety of the February 2014 personality disorder (NOS) diagnosis. A rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Readjudicate the claim. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel