Citation Nr: 20037529 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 16-58 500 DATE: June 2, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and generalized anxiety disorder, is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a right ankle disability, is remanded. Entitlement to service connection for a low back disability, to include as secondary to a right ankle disability, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a right ankle disability, is remanded. Entitlement to service connection for a right ankle scar, to include as secondary to a right ankle disability, is remanded. Entitlement to an increased evaluation in excess of 10 percent for the Veteran’s service-connected abdominal scar, status post caesarean section, is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Air Force from January 1990 to April 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2013, January 2015, and October 2016 by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in June 2019; a transcript of that hearing is of record. In November 2019, the Board remanded the Veteran’s claims for further development, including the scheduling of VA examinations for the Veteran’s claimed acquired psychiatric disability, as well her disabilities of the bilateral knees, bilateral ankles, low back, right ankle scar, and abdominal scar. However, for the reasons set forth below, the Board finds that substantial compliance with its November 2019 Remand directives has not occurred, and that the Veteran’s claims must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that a January 2020 rating decision granted the Veteran’s service connection claims for a right knee disability; accordingly, as the Veteran has been awarded the maximum benefit sought for such claim, the issue of service connection for a right knee disability is no longer in appellate status before the Board. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). 1. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and generalized anxiety disorder, is remanded. Unfortunately, the Veteran’s service connection claim for an acquired psychiatric disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. The Veteran’s service treatment records (STRs) reflect that her first child passed away in February 1991 during service at the age of one week, and that the Veteran reported in April 1991 that she was “very depressed” about the death of her child. The Veteran’s STRs dated September 1993 further reflect as follows: (1) she was diagnosed with “mild depressive symptoms” after reporting the following: depression; crying fits; heart flutters; abdominal cramping; nausea; and vomiting; (2) she was also diagnosed with an adjustment disorder with mixed emotional features; and (3) she was treated with prescription medication (lorazepam). The Veteran’s private treatment records dated October 2006 also reflect a diagnosis of depressive disorder, and private treatment records dated August 2008 and January 2009 reflect a diagnoses of depression and anxiety, and major depressive disorder (MDD) and generalized anxiety disorder, respectively. December 2012 private treatment records also confirm diagnoses of depression, conversion disorder, dementia, and multiple sclerosis, and that the Veteran had attempted suicide by drug overdose that day. Private treatment records dated February 2014 reflect that the Veteran was admitted to a private hospital with diagnoses of major depressive disorder and suicidal ideation, as the Veteran was found to be a danger to self in light of suicidal ideations and current plans and means. Private treatment records dated March 2014 further document the Veteran’s psychiatric admission, indicating a diagnosis of severe, recurrent MDD, as well as the following psychiatric symptoms: worsening depression; suicidal thoughts and ideations; visual hallucinations lasting two weeks; and delusions. The Veteran’s March 2014 private treatment records further reflect a history of a prior suicide attempt, as well as the Veteran’s report that her depression and anxiety symptoms “always” escalate around the anniversary of her daughter’s death in February 1991, that she feels hopeless and alone, that she has no one to talk to or to care about her. Pursuant to the Board’s November 2019 Remand, the Veteran was afforded a second VA psychiatric examination in December 2019, which culminated in an examination report confirming a diagnosis of unspecified depressive disorder but finding it less likely than not that the Veteran’s acquired psychiatric disability is causally related to her military service based upon the following rationale: (1) “Per collateral records, [the Veteran] reportedly saw an Air Force chaplain (during service) around the time of her first child’s death. Records indicated that she was ‘very depressed about the loss,’ but declined mental health services at that time;” (2) “Other records indicated work-related stressors and noted ‘sleep deprivation’ and stress associated with excessive work hours. She was diagnosed with ‘occupational problem and adjustment disorder with mixed emotional features;’ (3) “Adjustment disorders are, by their nature, responses to specific environmental stressors and would resolve with resolution of the stressor. As the work-related problems would not have persisted past her discharge, the adjustment disorder associated with the same could not have persisted;” (4) “Per records, she had a period that was apparently free of psychiatric symptoms for a number of years after discharge; (5) “She was hospitalized in 2014 with suicidal ideation, and there was mention of unresolved issues associated with childhood abuse in the description of events leading up to the admission;” (6) “Depression was documented in collateral treatment records in 2008, and she was ultimately diagnosed with generalized anxiety disorder and major depressive disorder. These symptoms were noted to have a relationship to symptoms of multiple sclerosis, and it was specifically indicated that anxiety varied with changes in MS symptomatology;” (7) The April 2016 VA examination report noted that the Veteran’s symptoms were “associated with multiple sclerosis, and I concur that multiple sclerosis is often associated with changes in mood, behavior, and cognition;” (8) “Given the clear evidence that depression is associated with multiple sclerosis, a non-service-connected medical condition, and that there is no indication that adjustment symptoms persisted beyond discharge, it is less likely than not that unspecified depressive disorder was caused by military service or incurred during active duty.” However, the December 2019 VA examination report does not address lay and medical evidence of the record, the vast majority of which existed prior the Veteran’s post-service diagnosis of multiple sclerosis: (1) the Veteran’s report during her March 2014 psychiatric hospitalization for attempted suicide that her psychiatric symptoms escalate every year around the February anniversary of her first child’s death; (2) the Veteran’s report to the April 2016 VA examiner that she sought psychiatric treatment from an Air Force chaplain during service around the time of the passing of her first child; (3) the Veteran’s report to the April 2016 VA examiner that she sought psychiatric treatment from an Air Force therapist when she returned to the United States; (4) the April 2016 VA examination report’s finding that the death of the Veteran’s newborn daughter constitutes a stressor adequate to support a diagnosis of post-traumatic stress disorder (PTSD); (5) a September 1993 STR notation indicating that, within a two years of her first child’s death, and while fourteen weeks pregnant with her second child, the Veteran reported symptoms of depression; (6) a September 1993 STR notation indicating a diagnosis of “mild depressive symptoms” based on the Veteran’s report of the following: depression; crying fits; heart flutters; abdominal cramping; nausea; and vomiting; (7) an October 1992 STR indicating that the Veteran’s “OB/GYN problem appears excessively abnormal. She is mentally devastated by this particular problem as it appears to have the most serious implications;” and (8) the April 2016 VA examination report’s indication that the Veteran’s “STR record was positive for periodic reporting of depressive and anxious symptoms mostly without formal diagnostic impressions.” In this case, the Board finds that substantial compliance with its November 2019 Remand directives has not occurred, as the December 2019 VA examination report failed to provide the directed opinion supported by a complete rationale or to address the totality of the relevant evidence of record, to include the vast majority of relevant in-service evidence, as well as the Veteran’s competent lay testimony regarding the observable symptomatology and onset of her acquired psychiatric disability; accordingly, the Veteran’s psychiatric disability claim must once again be remanded for another VA examination to determine whether such disability is related to her active military service and thus entitled to service connection on any basis. See id.; see also Barr, 21 Vet. App. at 311. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a left ankle disability, to include as secondary to a right ankle disability, is remanded. The Veteran contends that her current right ankle disability was caused by an in-service injury, to include a fall down some stairs which resulted in a right ankle sprain. The Veteran testified before the undersigned in June 2019 that she has had difficulty with her right ankle ever since her in-service fall, and that her right ankle required surgery shortly after service. The Veteran further testified that her right ankle disability continues to manifest pain and limited range of motion, and results in an altered gait. Regarding the Veteran’s left ankle injury, the Veteran testified before the undersigned in June 2019 that her left ankle pain onset during service simultaneously with and as secondary to her right ankle injury, due to overcompensation for her injured right ankle. Pursuant to the Board’s November 2019 Remand, the Veteran was afforded a VA examination in December 2019, which culminated in an examination report confirming a diagnosis of a chronic/recurrent lateral collateral ligament sprain for the right ankle, and abnormal range of motion bilaterally, but finding it less likely than not that the Veteran’s right ankle disability is causally related to her military service despite conceding that the Veteran’s STRs dated June 1992 reflect treatment for a right ankle twist injury and a related physical profile for ankle and knee pain. The December 2019 VA examination report also noted that “[n]o record of [the Veteran’s right ankle] surgery [was] found.” Regarding the Veteran’s left ankle claim, substantial compliance with the Board’s November 2019 Remand directives has not occurred, as the December 2019 VA examination report failed to provide the directed etiological opinion for the Veteran’s left ankle. See id. In addition, regarding the Veteran’s right ankle claim, substantial compliance with the Board’s November 2019 Remand directives has also not occurred, as the December 2019 VA examination report failed to provide the directed etiological opinion supported by a complete rationale and addressing the totality of the relevant evidence of record, to include the Veteran’s competent lay statements regarding the observable symptomatology and onset of her right ankle disability. Accordingly, the Veteran’s right and left ankle claims must once again be remanded for another VA examination to determine whether such disabilities are related to her active military service and thus entitled to service connection on any basis. See id.; see also Barr, 21 Vet. App. at 311. In addition, as the Veteran’s treatment records pertaining to her right ankle surgeries have not been obtained by VA or associated with her claims file, upon remand, any missing treatment records must be obtained, to include her surgical treatment records, so that the Veteran’s right ankle claim can be properly adjudicated. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.159. Accordingly, in light of the foregoing, the current record is not sufficient to determine whether the Veteran’s current right and left ankle disabilities are causally related to her active military service. See Colvin, 1 Vet. App. at 175. Therefore, the Veteran’s claims must be remanded for another VA examination to determine whether her current right and left ankle disabilities are related to her active military service, and thus entitled to service connection on any basis. See Barr, 21 Vet. App. at 310. 4. Entitlement to service connection for a low back disability, to include as secondary to a right ankle disability, is remanded. The Veteran contends that her current low back disability is related to her active military service, to include as secondary to her right ankle disability, due to the overcompensation and altered gait caused by her in-service right ankle injury. In December 2019, the Veteran underwent a VA examination which culminated in a report confirming the Veteran’s diagnosis of arthritis of the lumbar spine but declining to find a nexus between the Veteran’s current low back disability and her active military service on the grounds that “[p]er the Veteran’s entrance exam, she had strained her lower back previously when she stepped on a shelf.” The December 2019 VA examination report further notes a “single entry in the STRs regarding low back pain in 1991, and treatment was symptomatic.” However, the Veteran’s September 1989 entrance medical examination report is silent for any reference to any low back disability; in fact, the examination report described the spine as normal. Furthermore, the Veteran’s September 1989 Report of Medical History reports that she “strained muscles” in her right knee, not her low back, when she “stepped off [a] shelf” in 1989. Therefore, as the presumption of soundness attaches in this case, VA must establish clear and unmistakable evidence that the Veteran’s current low back disability pre-existed her entrance into active military service and was not aggravated by her military service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, in this case, as the examination is based on an inaccurate factual premise, the current evidence of record is insufficient to determine the etiology of the Veteran’s claimed low back disability. Thus, the Veteran’s claim must be remanded for an addendum medical opinion to determine whether her current low back disability is related to her active military service, and thus entitled to service connection on any basis. See Colvin, 1 Vet. App. at 175. 5. Entitlement to service connection for a left knee disability, to include as secondary to a right ankle disability, is remanded. The Veteran contends that her current left knee disability is related to her active military service, to include as secondary to her right ankle disability, due to overcompensation caused by her in-service right ankle injury. In December 2019, the Veteran underwent a VA examination which culminated in a report confirming that the Veteran’s left knee manifests abnormal range of motion but declining to find a nexus between the Veteran’s current left knee disability and her active military service on the grounds that the Veteran’s STRs “do not confirm any complaints/treatments for her left knee.” However, a medical opinion’s reliance upon the absence of evidence in a Veteran’s STRs contravenes applicable VA regulations and precedential case law which allow direct service connection where supported by sufficient evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, in this case, the Veteran’s claim must be remanded for an addendum medical opinion to determine whether her current left knee disability is related to her active military service, and thus entitled to service connection on any basis. See Colvin, 1 Vet. App. at 175; Stegall, 11 Vet. App. at 271. 6. Entitlement to service connection for a right ankle scar, to include as secondary to a right ankle disability, is remanded. 7. Entitlement to an increased evaluation in excess of 10 percent for the Veteran’s service-connected abdominal scar, status post caesarean section, is remanded. Unfortunately, the Veteran’s scar-related claims must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. The Veteran has submitted two contentions related to her scar disability: (1) her right ankle scar, to include as secondary to a right ankle disability, status post right ankle surgery, warrants service connection; and (2) her service-connected abdominal scar, status post caesarean section, warrants an increased evaluation in excess of 10 percent. However, the Board cannot make a fully informed decision on the issue of service connection for the Veteran’s scar-related claims because the December 2019 VA examination failed to issue an adequate report as follows: (1) the report fails to include the total area of the Veteran’s scar disability, to include her two right ankle scars and her abdominal scar; and (2) the report fails to indicate whether any of the Veteran’s scars are associated with or without underlying tissue damage. See Colvin, 1 Vet. App. at 175; see also 38 C.F.R. § 4.118. In addition, the Board notes that on July 13, 2018, VA issued a final rule amending its regulations governing skin disabilities, which had been in effect since 2008 (the 2008 Regulations). The regulations amended in 2018 became effective on August 13, 2018 (the 2018 Regulations). Therefore, claims filed on or after August 13, 2018, must be evaluated under the 2018 Regulations, and claims pending prior to August 13, 2018, must be evaluated under both the 2008 Regulations and the 2018 Regulations, with the most favorable set of criteria applied to the claims on appeal. See 83 Fed. Reg. 32592-32601 (July 13, 2018). However, in this case, the December 2019 VA examination report failed to accurately note that the Veteran’s scar disability claim was filed prior to August 12, 2018, or to assess her claims under both the regulations in place prior to and after August 12, 2018. Accordingly, remand for an additional VA scar examination is necessary in order to ensure substantial compliance with the Board’s November 2019 directives. See Stegall, 11 Vet. App. at 271. Finally, as stated above, the Veteran’s treatment records pertaining to her right ankle surgeries have not been obtained by VA or associated with her claims file; therefore, upon remand, any missing treatment records must be obtained, to include her surgical treatment records, so that the Veteran’s right ankle scar claim can be properly adjudicated. See Bell, 2 Vet. App. at 612-13; 38 C.F.R. § 3.159. Accordingly, in light of the foregoing, as the current record is not sufficient to properly adjudicate the Veteran’s claimed scar disabilities, another VA examination is necessary in order to determine whether the Veteran’s right ankle scar is entitled to service connection and whether her service-connected abdominal scar is entitled to an increased evaluation in excess of 10 percent. See Colvin, 1 Vet. App. at 175. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file, including any outstanding treatment records referenced in the June 2019 Board hearing transcript generated by Brooke Army Medical Center, Fort Sam Houston, in connection with the Veteran’s 1994 right ankle surgery. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records, to including attempting to obtain the Veteran’s service treatment records and service personnel records from all appropriate sources, including directly requesting records from Brooke Army Medical Center, Fort Sam Houston, as well as any other entity or organization that may have information regarding the Veteran’s treatment records or personnel records. 2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA psychiatric examination with an appropriate clinician to determine the nature and etiology of the Veteran’s claimed acquired psychiatric disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s acquired psychiatric disability, to include depression, anxiety, adjustment disorder, or any other acquired psychiatric diagnosis, is due to or otherwise causally or etiologically related to her military service, to include the Veteran’s reported stressors involving the death of her first infant child during service. The examiner must address all relevant lay and medical evidence, to include lay statements of the Veteran regarding her escalation in psychiatric symptoms each year in connection with the anniversary of her first child’s death. The examiner must also address all medical evidence relating to the Veteran’s psychiatric symptomatology and treatment during service, to include the 1992 and 1993 records documenting symptoms. In offering these assessments, the examiner must not only discuss the disorders diagnosed on current examination, but also any psychiatric disorder or disability diagnosed during this appeal. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the December 2019 examiner, to determine the nature and etiology of the Veteran’s claimed right ankle disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: (i) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s right ankle disability (to include any functional impairment caused by pain) is due to or otherwise causally or etiologically related to his military service, to include the in-service fall reported by the Veteran; (ii) whether it is at least as likely as not that the right ankle disability (a) began during active service, (b) manifested within one-year after discharge from service, or (c) was noted during service with continuity of the same symptomatology since service; and The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 4. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the December 2019 examiner, to determine the nature and etiology of the Veteran’s claimed left ankle disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: (i) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s left ankle disability (to include any functional impairment caused by pain) is due to or otherwise causally or etiologically related to her military service, to include as secondary to her right ankle disability; (ii) whether it is at least as likely as not that the left ankle disability (a) began during active service, (b) manifested within one-year after discharge from service, or (c) was noted during service with continuity of the same symptomatology since service; (iii) whether the left ankle disability is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include the right ankle disability. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 5. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the December 2019 examiner, to determine the nature and etiology of the Veteran’s claimed low back disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: (i) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s low back disability (to include any functional impairment caused by pain) is due to or otherwise causally or etiologically related to her military service, to include as secondary to her right ankle disability; The examiner must note that the Veteran was presumed sound upon entrance to service. (ii) whether it is at least as likely as not that the low back disability (a) began during active service, (b) manifested within one-year after discharge from service, or (c) was noted during service with continuity of the same symptomatology since service; (iii) whether the low back disability is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include the right ankle disability. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 6. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the December 2019 examiner, to determine the nature and etiology of the Veteran’s claimed left knee disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: (i) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s left knee disability (to include any functional impairment caused by pain) is due to or otherwise causally or etiologically related to her military service, to include as secondary to her right ankle disability; (ii) whether it is at least as likely as not that the left knee disability (a) began during active service, (b) manifested within one-year after discharge from service, or (c) was noted during service with continuity of the same symptomatology since service; (iii) whether the left knee disability is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include the right ankle disability. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 7. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the December 2019 examiner, to determine the nature, severity, and etiology of the Veteran’s claimed scar disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: (i) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s right ankle scar disability is due to or otherwise causally or etiologically related to her military service, to include as secondary to her right ankle disability; (ii) whether the right ankle scar disability is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include the right ankle disability. The Veteran’s scar disability claim was filed prior to August 18, 2018; accordingly, the Veteran’s scar disability must be evaluated under both the 2008 Regulations and the 2018 Regulations, with the most favorable set of criteria applied to the claims on appeal. In addition, the examiner must provide the following information: (a) the total area of the Veteran’s scar disability, to include her two right ankle scars and her abdominal scar; and (2) whether any of the Veteran’s scars are associated with or without underlying tissue damage. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.