Citation Nr: 20003876 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 09-30 242 DATE: January 16, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than post-traumatic stress disorder (PTSD), to include an anxiety disorder and a mood disorder is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 8, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1965 to August 1974. In a January 2015 decision, the Board determined that the issue of entitlement to a TDIU prior to August 8, 2011, was not on appeal. Per a Joint Motion for Partial Remand granted in June 2016, the Court of Appeals for Veterans Claims vacated that portion of the January 2015 Board decision and remanded the matter to the Board. As to the additional claims on appeal, the Board notes that the previous September 2017 Board remand requested that VA attempt to obtain private records regarding those claims. The record reflects that those records were identified by the Veteran from Roger Williams Medical Center and have been provided and associated with the record. As such, further remand is not necessary regarding this development request. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include an anxiety disorder and a mood disorder is remanded. While further delay is regrettable, it is necessary to obtain an adequate medical opinion. The Veteran underwent a VA PTSD exam in March 2019, and the examiner indicated that the Veteran does not have any additional diagnosed psychiatric disorders other than PTSD. However, treatment reports in CAPRI reflect diagnoses of anxiety disorder and depressive disorder during the appeal period. Because the Veteran had the diagnoses during the appeal period, the March 2019 VA examiner needed to address those diagnoses and whether they are accurate or in error. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, an addendum opinion is necessary to address the Veteran’s previous psychiatric diagnoses. Moreover, remand is necessary to address the Board’s previous remand directives. In the September 2017 remand, the Board instructed that although the Veteran underwent a VA PTSD examination in July 2009, the opinion provided by the examiner did not address whether any additional acquired psychiatric disability was superimposed upon the Veteran’s passive aggressive personality disorder diagnosed in service. The March 2019 VA examiner did not address this directive. Given that the March 2019 examiner did not diagnose any current psychiatric conditions other than PTSD, the examiner may have found the question moot. However, as the issue of current diagnoses is being remanded, the question of whether the Veteran has a psychiatric disability superimposed upon his passive aggressive personality disorder must be addressed. While service connection cannot be granted for a personality disorder, where there was a superimposed disease during service, service connection could be warranted. See VAOPGCPREC 82-90. Specifically, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38C.F.R. §4.127. As such, remand is necessary for an addendum opinion regarding the Veteran’s personality disorder as well. 2. Entitlement to service connection for PTSD is remanded. Remand is necessary to obtain an adequate opinion regarding the Veteran’s claim for service connection for PTSD. As instructed in the previous remand, the Veteran underwent a new VA PTSD examination. In March 2019, the exam took place, and the examiner provided a DSM-5 diagnosis for PTSD. The examiner also acknowledged the Veteran’s in-service stressors. Specifically, the examiner noted that in 1965, the Veteran states that he was almost swept overboard by a wave on his ship, USS Hugh Purvis, and a sailor, J.F., stopped him from going overboard. The examiner also noted that in 1966 or 1967, the Veteran states that he was held captive in Boston for three days by a male civilian and two women. The examiner noted the Veteran’s assertions that the women made him have sex with him, and the civilian male raped him. However, the in-service stressors relied on in this opinion have not been verified. In the September 2017 remand, the Board noted the Veteran’s assertions that he has experienced nightmares about drowning and poor sleep since service when he “got washed down the deck in a bad storm.” The Board noted that the Veteran also recalls stressors of his ship running around and an accident while scuba diving when his tank would not function properly, and he had to dump the tank at the bottom of the ocean and swim 50 feet to the top. In the September 2017 remand, the Board also explicitly stated that the “only stressor which has been verified is the incident with the ship running aground.” See September 2017 Remand, pg. 21. The Board notes that the March 2019 VA examiner failed to address the verified stressor. As such, remand is necessary to address the Veteran’s verified in-service stressor regarding the ship “running around.” As to the stressors that were addressed by the March 2019 VA examiner, the Board explains that for claims for service connection for PTSD, a veteran’s lay statements alone are not sufficient to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389 (1996). There are limited exceptions where a Veteran’s stressor does not require additional corroboration, such as stressors based on combat service, fear of hostile military activity or being a prisoner of war. See 38 C.F.R. § 3.304(f)(2-4). However, the record does not reflect that the Veteran meets any of these exceptions. As such, his lay statements alone are not sufficient to establish his in-service stressors. As such, while the March 2019 VA examiner provided a negative opinion and linked the Veteran’s PTSD to a non-service related cause, VA must undertake efforts to verify the Veteran’s stressors before seeking a medical opinion. As such, the March 2019 opinion is not adequate. Moreover, the Veteran asserts an incidence of military sexual trauma (MST). Although he asserts that the attack was by civilians, as it took place during service, it is attributed to MST. There are specific requirements, to include notice, regarding claims based on MST and the efforts VA will undertake to assist a Veteran in verifying such events. See 38 C.F.R. § 3.304(f)(5). The Board acknowledges that the record reflects that VA undertook efforts in 2009 to verify whether the Veteran was seeking service connection for PTSD based on personal trauma. Per these inquiries, the Veteran submitted statements regarding his PTSD stressors, and he did not discuss an in-service personal assault. However, as he now raises the in-service assault, the Board finds the record clear to indicate a claimed stressor for personal assault. As such, the Agency of Original Jurisdiction (AOJ) must provide the Veteran proper notice regarding the development of claims based on MST and seek a new medical opinion. 3. Entitlement to service connection for diabetes is remanded. Remand is necessary to obtain an adequate opinion regarding the claim for service connection for diabetes. The March 2019 VA examiner provided a negative opinion and reasoned that there is “Absolutely no evidence that he had diabetes in service, which is a serious condition and would definitely have been followed and treated. Diabetes can cause hypoglycemia which can cause falls, which are dangerous on a [N]avy ship. Entrance exam sugar was negative, so was exit exam. ONLY SUBJECTIVE REPORT BY VETERAN ONE TIME (emphasis added).” However, the Board does not find this opinion adequate. The Board explicitly noted in the September 2017 remand directives that a May 1967 service treatment record (STR) notes treatment for diabetes. Moreover, the Board now notes that the May 1967 STR does not appear to be a subjective report; that examiner wrote “has been under treatment for diagnosis of diabetes.” As such, the assertion of the March 2019 examiner that there is no evidence to support in-service treatment for diabetes is not accurate. It is also fails to address the Board’s previous remand directives to address the May 1967 STR. As such, the matter must be remanded to address the Board’s previous directives and obtain an adequate opinion. Stegal v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the March 2019 VA examiner also addressed aggravation of the Veteran’s diabetes and stated that there is no record of a pre-existing condition of diabetes. However, the record does not suggest, nor did the Board remand or AOJ’s instructions inquire as to aggravation of a pre-existing condition of diabetes. Moreover, as the examiner opined that there was no diabetes shown in service, the Board also does not find the opinion sufficient to raise a question of pre-existing diabetes. As such, the claim is not one for aggravation. 4. Entitlement to service connection for a right knee condition is remanded. Remand is necessary to obtain an adequate opinion regarding the Veteran’s right knee condition. The March 2019 VA examiner also provided a negative opinion as to whether the Veteran’s right knee condition is due to his active service. The examiner noted the Veteran’s in-service right knee complaints and injuries. However, the examiner reasoned that the Veteran had two minor injuries during service, and subsequent physical exams were negative. The examiner indicated that a 1974 Med Board was also negative for knee issues. The examiner also noted the Veteran’s assertions regarding his in-service right knee symptoms and post- service continuity of such symptoms. The examiner stated that there is a medical basis to doubt this history as there is no medical evidence in the STRs on exit exam and no medical records attesting to the continuity. The examiner further stated that if the Veteran “truly had continuity, there would be records attesting to this from 1974 on.” The examiner also stated that considering that the Veteran went to sick bay at least every 2-3 months during service, it is reasonable to assume he would have done the same after active duty. However, the Board does not find this opinion adequate. Initially, the Board notes that the VA examiner’s conclusion is improperly predicated on a lack of documentation in the medical record. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). While medical treatment is relevant, a lack of such treatment cannot be the sole basis for a negative opinion. Moreover, the March 2019 VA examiner also failed to address the Veteran’s lay assertions regarding his knee treatment and complaints since service. For example, an August 2009 Form 9 states that the Veteran has continued to use camphor menthol lotion for his right knee. Additionally, a May 2013 statement from the Veteran notes his in-service right knee injuries and states that he has had ongoing problems with his knee resulting in three surgeries. The Board notes that the Veteran is competent to attest to observable symptoms, such as pain. These assertions are also to be considered by the examiner as credible and must be addressed on remand regardless of medical treatment by a professional. Additionally, the previous remand also sought an opinion as to whether the Veteran’s right knee disability is secondary to his service-connected back disability. The March 2019 VA examiner provided a negative opinion to this inquiry as well and reasoned that, “It must also be noted that the Veteran has worked for twenty years after active duty as a technician on submarines, which involves considerable kneeling, standing up and down ladders, etc. He also worked ten years after that as a maintenance [worker] in a college. [It is] highly unlikely that [his] current knee issues are due to service[.] [It is] most likely due to aging, wear and tear on the body, occupational history, obesity (as noted in MD notes). It must also be noted that he went on worker’s comp for the right knee.” The Board acknowledges that this rationale speaks to the matter of an “intercurrent cause,” which could counter the theory of continuity of symptoms. However, the errors in the examiner’s VA opinion discussed above regarding continuity of symptoms must be corrected. As such, this rationale is not sufficient at this time. Nor is this rationale adequate as to secondary service connection. The rationale as to the Veteran’s post-service occupation, worker’s compensation claim and risk factors does not address whether the Veteran’s right knee is secondary to his service-connected back disability. As such, remand is required for an addendum opinion regarding aggravation. The Board notes that secondary service connection addresses both causation and aggravation. Thus, if a negative opinion is provided as to whether the Veteran’s right knee disability is due to his service-connected back condition, an opinion is still necessary as to whether his right knee condition has been aggravated by his service-connected back condition. As to aggravation, with regard to aggravation, the Board notes that per a recent decision from the Court of Appeals for Veterans Claims, “any incremental increase in disability—any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions…regardless of its permanence” constitutes aggravation. Ward, Neal v. Wilkie, 31 Vet.App. 233 (2019). As such, the examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. 5. Entitlement to service connection for prostate cancer is remanded. Remand is necessary to obtain an adequate opinion regarding the claim for service connection for prostate cancer. The Board previously remanded the appeal to have the VA Chief Public Health and Environmental Hazards Officer, or any other appropriate VA official, verify the Veteran’s exposure to carbon tetrachloride and/or other toxic chemicals during service. In February 2019, a positive opinion was provided indicating that it is at least as likely as not that the Veteran was exposed to carbon tetrachloride and/or other toxic chemicals during service. The Board finds the opinion adequate and concedes exposure. However, the March 2019 VA examiner did not address the Veteran’s in-service exposure. In the March 2019 medical opinion, the examiner stated that prostate cancer is not a presumptive condition and that there is no confirmed Agent Orange exposure. The examiner further stated that she is not competent to comment on exposure to carbon tetrachloride and/or other toxic chemicals during service and that she will forward to a qualified expert. However, the record does not reflect that the issue has been referred to another examiner as there is no opinion of record addressing the matter of prostate cancer due to chemical exposure. As such, remand is necessary to obtain such an opinion. 6. Entitlement to a TDIU prior to August 8, 2011, is remanded. As the outcome as to the determination of the issues being remanded may impact the determination as to entitlement to a TDIU prior to August 8, 2011, the issue of entitlement to a TDIU is inextricably intertwined with the other issues on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The Board therefore finds it premature to adjudicate the claim for a TDIU prior to August 8, 2011, at this time, and that issue is remanded as well. The matters are REMANDED for the following action: 1. Provide the Veteran appropriate notice regarding claims for service connection for PTSD, to include MST. The Veteran must be informed of the specific type of evidence that would assist in corroborating his currently unverified stressors relating to: i) Almost being thrown off a ship; and ii) being sexually assaulted by two civilians in Boston. 2. Then, undertake the appropriate steps to verify the Veteran’s claimed stressors. 3. After corroborating the Veteran’s stressors, return the claims file, to include a copy of this remand, to the March 2019 VA examiner for an addendum opinion concerning the nature and etiology of the Veteran’s psychiatric disabilities. If the examiner is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms. Any opinion provided must consider the Veteran’s and any other competent lay statements and be accompanied by a rationale. a) PTSD: For any verified in-service stressor, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that that the stressor is related to the Veteran’s current diagnosis of PTSD. b) Psychiatric disorder other than PTSD: i) Initially, the examiner is asked to identity all of the Veteran’s current psychiatric diagnoses other than PTSD. The examiner must address any previous post-service psychiatric diagnoses of record and indicate whether those diagnoses were accurate or in error and whether they have since resolved. ii) For any currently diagnosed psychiatric disorder other than PTSD, the examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the psychiatric disorder was incurred during, caused by or is otherwise related to the Veteran’s active service. Importantly, the examiner is advised that unlike claims for PTSD, there is no requirement that a stressor be verified for other psychiatric diagnoses. As such, the examiner should consider the Veteran’s reports of almost being thrown from a ship, as such statements are consistent with the general nature and circumstances of service. However, as the claim based on sexual assault is more specific, the examiner is not asked to address this event unless it is established as having occurred. iii) Per the previous remand directives, the examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any additional acquired psychiatric disability is superimposed upon the Veteran’s personality disorder. Per the previous remand directives, in responding, the examiner should consider the July 1967 report of psychiatric consultation in service, VA psychiatric treatment records and the July 2009 VA PTSD examination report, including the Veteran’s assertions noted therein. 4. For the claims regarding diabetes, prostate cancer and the right knee, have an appropriate examiner(s) other than the examiner who provided the March 2019 VA opinions, M.M., review the claims file and provide an addendum opinion concerning the etiology of these conditions. The need for another examination is left to the discretion of the medical professional offering the addendum opinions. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. Any opinion provided must consider the Veteran’s and any other competent lay statements and be accompanied by a rationale 5. Diabetes: The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes was caused by, incurred during or is otherwise related to his active service. Importantly, the examiner must address the May 1967 STR indicating that the Veteran has been treated for a diagnosis of diabetes. 6. Right Knee: i) Initially, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right knee condition was caused by, incurred during or is otherwise related to his active service. Importantly, the examiner must address the Veteran’s in-service right knee injuries as documented in his STRs. The examiner must also address the Veteran’s lay assertions of continued knee issues since these injuries as well as self-treatment, to include use of camphor menthol lotion. ii) If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right knee disability was caused (in whole or in part) or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-back disability. 7. Prostate Cancer: The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s prostate cancer is related to his exposure to carbon tetrachloride and/or other toxic chemicals during service. 8. After completing the above actions, readjudicate the claims on appeal, to include the appeal for entitlement to a TDIU prior to August 8, 2011. If the benefits sought remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.