Citation Nr: 1805886 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-08 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression, not otherwise specified (NOS), claimed as posttraumatic stress disorder (PTSD), cognitive disorder, anxiety, and impulse disorder, to include as secondary to a service-connected back disability. REPRESENTATION Veteran represented by: Ralph J. Bratch, Esq. ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for PTSD. Jurisdiction was subsequently transferred to the RO in Indianapolis, Indiana. The Veteran requested a hearing before a Veterans Law Judge. See April 2011 VA Form 9. The Veteran and his representative later withdrew that request. See March 2012 Correspondence from Veteran. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. 20.704(e) (2017). The Board remanded the Veteran's claim in December 2013 for further development. Unfortunately, for the reasons discussed below, the claim requires yet another remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the further delay, a remand is required in this appeal for compliance with the Board's former remand directives and to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim, so that he is afforded every possible consideration. This matter was remanded by the Board in December 2013 for additional development. The Board directed the RO to request the Veteran identify non-VA medical providers, offer the Veteran an opportunity to provide additional information concerning a reported in-service stressor, and further develop the Veteran's reported in-service stressor with any information provided by the Veteran. If the Veteran chose not to provide any information, the RO was to obtain records from December 1967 to July 1968 in an attempt to verify the previously reported in-service stressor. The RO was also instructed to make arrangements to secure VA treatment records from June 2009, forward. Lastly, the RO was instructed to schedule the Veteran for a VA mental disorders examination and secure a nexus opinion for any acquired psychiatric disorder diagnosed. After the December 2013 remand, the Veteran did not provide any additional information concerning his reported in-service stressor of witnessing a service member intentionally cut off his own finger. See April 2009 Statement in Support of Claim. However, the record does not reflect that the RO sought records from December 1967 to July 1968 in an attempt to verify the previously reported in-service stressor. In light of the foregoing, the Board finds that there was not substantial compliance with the Board's December 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Appropriate efforts must be made to verify the Veteran's reported in-service stressor. See 38 C.F.R. § 3.304(f) (2017) (providing, in pertinent part, that in order to establish service connection for PTSD, an in-service stressor must be verified by credible supporting evidence, subject to certain exceptions); see also 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board notes VA conceded the Veteran experienced an in-service stressor (exposure to combat) while serving aboard the USS John R. Craig from November 7, 1967 to November 20, 1967. See December 2014 Compensation and Pension Exam Inquiry. In December 2014 the Veteran underwent a VA mental disorders examination. The Board finds the corresponding medical opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The examiner diagnosed the Veteran with depression, NOS. The examiner noted that the Veteran expressed considerable emotional distress at his current medical problems including chronic leg and back pain. At the time of the examination, the Veteran was service connected for both lumbar radiculopathy of the left and right lower extremities associated with residuals of a low back injury with arthritis, degenerative disc disease, lumbar spine. The examiner concluded that the Veteran's depression, NOS was primarily related to chronic pain and loss of function secondary to various health problems. The examiner did not explain the location of the chronic pain, what specific functional capabilities were lost, or the various health problems that contributed to the diagnosis. The opinion also did not note whether the Veteran's diagnosis of depression, NOS was more likely than not directly linked to his active duty service. Therefore, the opinion does not allow the Board to make a determination on the theory of direct service connection. See 38 C.F.R. § 3.303 (2017); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). The December 2014 VA mental disorders examination did not address the issue of secondary service connection. Thus, the RO requested a VA addendum medical opinion in April 2016 concerning the potential link between the Veteran's depression, NOS and his service-connected back disability. The RO requested the opinion to address whether the Veteran's depression, NOS is proximately due to or the result of his back degenerative disc and joint disease and/or lower extremity radiculopathy. In April 2016, the same examiner that provided the December 2014 examination and opinion concluded that "it is less likely than not" that the Veteran's depression, NOS is "related to pain associated with" his service-connected physical problems. The examiner went on to state that the Veteran has "multiple chronic, severe" non-service connected "medical problems which interfere with his functioning and quality of life." The examiner also stated that the Veteran's service-connected back disability is not considered to be a "significant" contributing factor to his diagnosis of depression, NOS. Again, the Board finds the medical opinion is inadequate. See Barr, 21 Vet. App. at 312. The examiner did not conclusively address whether the Veteran's service-connected back disability caused or aggravated his depression, NOS to allow the Board to make a determination on the theory of secondary service connection. See 38 C.F.R. § 3.310(a), (b) (2017); see also Colvin, 1 Vet. App. at 175. The April 2016 addendum opinion was also based on inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The examiner based his conclusion, in part, on the contention that the Veteran's medical records did not indicate complaints of back pain. However, for example, the Veteran has been prescribed Hydrocodone and requested a refill for his back pain in March 2016. The Veteran also consistently reported experiencing chronic back pain in his VA medical records, typically rating the pain 6 out of 10. The Veteran's complaints of back pain are also demonstrated in the September 2015 VA spine examination. Additionally, the examiner noted a lack of discussion of depression in the Veteran's medical records in his rationale. The examiner included a depression screen from April 2016 in his opinion that was negative, but did not include a positive depression screen in October 2015. The examiner failed to cite that the Veteran reported a longstanding history of anxiety, anger issues, and depression during a July 20, 2015 Psychology Consult. Further, the opinion does not take into account that in a July 31, 2015 Psychology Progress Note, the Veteran stated that he has feelings of worthlessness and felt fat and ugly. The Veteran also described that he is having difficulty accepting his physical and medical changes. The Veteran explained that his medical and pain issues place physical and functional limitations on him that interfere with activity engagement. The symptoms reported by the Veteran caused occupational and interpersonal problems. The examiner stated the Veteran stopped working in 2009 due to abdominal surgery for a hernia repair and not because of back pain. But, the Veteran reported his back disability impacted his ability to work in a September 2015 VA spine examination. The Veteran advised that he has to keep changing positions in his chair and shifting to be comfortable, cannot remain in one position for any length of time, cannot walk for long distances, and is not able to stand for more than a few minutes at a time before he needs to sit. In the December 2014 VA mental disorders examination, the occupational history section notes the Veteran stated that if it were not for his chronic back pain, obesity, chronic obstructive pulmonary disease, and heart problems, he would still be able to work full-time. In Mittleider v. West, 11 Vet. App. 181, 182 (1998), the U.S. Court of Appeals for Veterans Claims (Court) held that, when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to discern the effects of each disability, and where such distinction is not possible, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Therefore, the Board finds that a new VA examination and opinion are necessary to fully address the nature and etiology of the Veteran's claimed acquired psychiatric disorder. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran adequate notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) addressing the issue of service connection for an acquired psychiatric disorder, as secondary to a service-connected disability. See 38 C.F.R. § 3.310. 2. Make arrangements to obtain the Veteran's complete VA treatment records dated from April 2016, forward. 3. Make appropriate efforts to verify the Veteran's reported in-service stressor of witnessing a fellow service member intentionally cut off his own finger between November 1967 and July 1968. If the reported in-service stressor cannot be verified, the Veteran should be notified and the record clearly documented. 4. Then, arrange for the Veteran to undergo VA examination by a VA psychologist or psychiatrist who has not previously examined the Veteran. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must reflect that such a review was undertaken. The examiner must identify all current acquired psychiatric disorder(s) found to be present. The examiner should clearly indicate whether the Veteran has PTSD in accordance with the DSM-V. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria are met, to include identifying the specific stressor(s) underlying the diagnosis, and commenting upon the link (if any) between the current symptomatology and the established stressor(s). For any acquired psychiatric disorder other than PTSD, the examiner should provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that it had its clinical onset during active service or is related to any incident of service; and (b) Whether it is at least as likely as not (50 percent probability or greater) that it was either (i) caused by, or (ii) aggravated by a service-connected disability, to include a low back disability, lumbar radiculopathy right and left lower extremities, tinnitus and bilateral hearing loss. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should note: * VA has conceded the Veteran experienced an in-service stressor when exposed to combat from November 7, 1967 to November 20, 1967 while aboard the USS John R. Craig. * VA treatment records note the Veteran's medical history includes diagnoses for depression, NOS; PTSD, chronic; and chronic back pain. * VA treatment records indicated prescriptions for Bupropion and Citalopram for PTSD. The Veteran receives Hydrocodone and requested a refill for his back pain in March 2016 * The Veteran reported a longstanding history of anxiety, anger issues, and depression during a July 20, 2015 Psychology Consult. * In a July 31, 2015 Psychology Progress Note, the Veteran stated that he has feelings of worthlessness and is fat and ugly. The Veteran also described that he is having difficulty accepting his physical and medical changes. The Veteran advised that his medical and pain issues place physical and functional limitations on him that interfere with activity engagement. The symptoms reported caused the Veteran occupational and interpersonal problems. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset of his disorder(s). If the examiner rejects the Veteran's reports regarding the onset of symptoms, the examiner must provide a reason for doing so. The examiner must provide a comprehensive report including complete rationales for all opinions and reconcile his or her findings with the prior opinion of record. 5. After ensuring compliance with the above, readjudicate the claim. If the benefits sought is not granted, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC) and 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). _________________________________________________ Lesley A. Rein 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).