Citation Nr: 19124993 Decision Date: 04/03/19 Archive Date: 04/03/19 DOCKET NO. 17-64 548 DATE: April 3, 2019 REMANDED Entitlement to an initial rating greater than 10 percent for service-connected somatic symptom disorder is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Marine Corps from September 1979 to March 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted entitlement to service connection for somatic symptom disorder, secondary to service-connected left knee chondromalacia, low back strain, and finger pain, and assigned an initial disability evaluation of 10 percent from August 17, 2016. The appellant appealed the initial 10 percent rating in a May 2017 Notice of Disagreement. 1. Entitlement to an initial rating greater than 10 percent for service-connected somatic symptom disorder is remanded. The appellant contends that his somatic symptom disorder is more disabling than currently rated, and that his initial 10 percent rating for the disability was not enough to compensate him for his disability. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. The appellant underwent a private examination in August 2016 to address his mental health disability, with the results provided on a VA Disability Benefits Questionnaire (DBQ). The examiner did not indicate at the time of that examination how it had been conducted, in-person, by phone, or by tele video call, considering the appellant lives in Oregon, and the examiner lives and works in Tallahassee, Florida. As stated by the appellant at his February 2018 VA examination, discussed below, he never met with the examiner who generated this report. Further, the examiner did not note that she reviewed any of the evidence of record in providing an evaluation. As the examiner neither interviewed the appellant, nor reviewed the claims file, the Board finds that this examination is inadequate. Based on the evidence of record, the examiner had no bases, either by a review of the evidentiary record, or by an interview with the appellant, for drawing the conclusions that she did. The Board also affords the April 2017 medical opinion offered by a separate private psychologist, from Aguadilla, Puerto Rico, no probative weight, as it was based entirely on the assessment provided in the August 2016 private examination. This psychologist did not conduct any interviews or discussions with the appellant and did not indicate that he had reviewed the claims file. As the examination upon which that the opinion is based is inadequate, so too this opinion, which relies exclusively on the findings of that August 2016 private examination, is inadequate. The appellant has also submitted, with a waiver of consideration by the Agency of Original Jurisdiction, another private examination from February 2018, also with the results recorded on a DBQ, and also conducted by an examiner from Aguadilla, Puerto Rico. Similar to the private examination submitted in August 2016, which the appellant resubmitted along with this private examination, the appellant was found with symptoms markedly increased from the symptoms noted at his two VA examinations in October 2016 and February 2018. Similarly as well, the examiner did not indicate how the examination was conducted, considering that the appellant resides in Oregon, and the examiner was located in Puerto Rico. The examiner also did not review any of the evidence of record, and only lists having looked at “VA’s regulations for service connected disability ratings” in rendering the decision. The examiner did not indicate the appellant receives mental health treatment or takes any medication to treat his disability. While uncertainty regarding how the examination was conducted does raise issues with the adequacy of the examination, considering the situation discussed above regarding the August 2016 private examination, the Board finds that it at least raises an indication of a worsening of the appellant’s condition in the weeks between his February 2018 VA examination and this private examination. As such, the Board finds that remand is necessary to determine whether the appellant’s disability has in fact worsened in the intervening period. Importantly, a February 2018 Beck’s Depression Inventory result sheet was included with the appellant’s February 2018 private examination; however, there is no indication as to who conducted the exam and how it was conducted. Despite any documentation that addresses who conducted the examination and how, the Board finds that it also raises an indication that the appellant’s condition is worse than currently rated, and as such, requires remand for another VA examination addressing the severity of the appellant’s disability. Included with the February 2018 private examination was another March 2018 private opinion by a psychologist who did not treat or examine the appellant in any way, which addressed the severity of his disability. This psychologist is located in Aguadilla, Puerto Rico, and shares a mailing address with the psychologist who provided the April 2017 medical opinion and the examiner who filled out the February 2018 DBQ. This examiner relied on both the non-probative August 2016 private examination and the February 2018 private examination in reaching the conclusion that the appellant’s disability was much more disabling than currently rated. As the psychologist did not interview the appellant, and only seems to have reviewed the Statement of the Case, and the two private opinions, one of which the Board has already found inadequate, and one which shares similar indicia of unreliability, the Board finds this opinion inadequate for purposes of assigning the appellant a greater rating. The appellant has undergone VA examinations in October 2016 and February 2018 related to his service-connected mental health disability. At both examinations, the appellant’s disability was found to cause occupational and social impairment due to mild or transient symptoms, decreasing work efficiency and the ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by medication. The appellant was not noted as receiving any regular or continuing treatment for his disability and it was not noted that he takes any medication to treat his mental health disability. Considering the large discrepancies between the severity of symptoms findings of the private February 2018 examination and the VA examination in February 2018, and this raises the possibility of a worsening of the appellant’s symptoms, the Board finds that remand is necessary to afford the appellant a new VA examination to determine the severity of his mental health disability. The examiner should comment on the February 2018 Beck’s Depression Inventory findings and should conduct similar diagnostic testing in rendering an opinion on the severity of the appellant’s disability. The matter is REMANDED for the following action: 1. Schedule the appellant for an examination by an appropriate clinician to determine the current severity of his service-connected somatic symptom disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant’s disability under the rating criteria. The examiner should conduct diagnostic testing, to include a Beck’s Depression Inventory test, if indicated. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. The examiner should address the findings of the February 2018 private examination and the March 2018 private opinion. The examiner should comment on the findings of the February 2018 Beck’s Depression Inventory. The examiner should attempt to elicit information from the appellant as to how the February 2018 Beck’s Depression Inventory was administered, and information as to how the February 2018 private examination was conducted. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel