Citation Nr: 21001583 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-59 857 DATE: January 11, 2021 REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to September 1975. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previously before the Board in August 2019, when the Board denied the Veteran’s claims for service connection for a headache disability and an acquired psychiatric disorder, including PTSD, schizophrenia, and bipolar disorder. The Veteran appealed the denial of the claims to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Partial Remand (JMPR). In July 2020, the Court granted the JMPR, vacating the portion of the Board decision denying entitlement to service connection for a headache disability and an acquired psychiatric disorder, and remanded the case for further proceedings. The case has been returned to Board at this time for appellate review. 1. Entitlement to service connection for a headache disability. As discussed in the JMPR, the Veteran was provided a VA headaches examination in December 2015. During this examination, the Veteran reported having recurring headaches since 1969, when he states he was beaten in service and had surgery for a deviated septum. He further reported experiencing headaches daily on both sides of the head, which are frequently severe and pounding, and are accompanied by nausea and sensitivity to light. The examiner opined that service connection could not be established as the Veteran had never been diagnosed for, seen or treated for headaches. The Board finds the December 2015 opinion inadequate, as the examiner did not provide a diagnosis regarding whether the Veteran had a headache disability currently or at any point during the appeal period, especially in light of the reports of experiencing headaches on a daily basis, in addition to other symptomatology related thereto. The examiner merely stated that the Veteran had not had a diagnosis or been treated for headaches in the past, but did not provide a diagnosis regarding whether the Veteran currently had a headache disability based on the Veteran’s reported symptoms. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition, the Board finds the February 2016 addendum opinion regarding the Veteran’s headaches disability inadequate, as it appears to dismiss the Veteran’s lay statements regarding having headaches in and since service solely on the basis that they are not documented in medical records. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, neither opinions of record addressed the Veteran’s complaints of headaches in service. Thus, the Board cannot make an informed decision on this claim based on the current evidence of record. As such, the Board finds that a new opinion (and examination, if found necessary) that addresses the deficiencies noted above must be obtained on remand. 2. Entitlement to service connection for acquired psychiatric disability, to include PTSD and major depressive disorder. The Veteran asserts that his acquired psychiatric disorders, including PTSD and depression, are related to his experiences in service. The Veteran was provided a VA examination in November 2013, when the Veteran was diagnosed with PTSD based on his claimed in-service stressor of being assaulted by fellow soldiers during service. The examiner provided a positive nexus opinion, stating that the Veteran’s PTSD was at least as likely as not related to this claimed in-service assault. However, the examiner did not provide an adequate rationale for the opinion provided and merely stated there was no evidence of PTSD or a mental health condition prior to the purported assault in service. A VA examination was provided in June 2014, during which the Veteran reported the stressor of being beaten up by fellow soldiers and hospitalized for a week. In addition, he reported he was dropped in a jungle of Vietnam by himself with no ammunition and was fearful of being attacked by wild animals. The examiner concluded that an opinion regarding nexus could not be provided without resorting to speculation, as there were inconsistencies in the record and a lack of documentation regarding the reported in-service stressors. In addition, the Veteran appeared to have difficulties communicating during the examination. Another VA examination and opinion regarding PTSD was obtained in February 2016. The Veteran reported the same in-service stressors during this examination. The examiner concluded that it was less likely than not that the in-service personal assault occurred as it was not supported by the objective evidence of record. The examiner further stated that the Veteran did not have a current diagnosis of bipolar disorder or schizophrenia, and that it was at least as likely as not that the Veteran’s reported symptoms are consistent with a diagnosis of PTSD. The examiner did not provide a clear opinion regarding nexus. The Board finds the above opinions inadequate to make an informed decision on the claim and properly weigh the evidence of record. First, there are inconsistencies in the record regarding which stressor the Veteran’s PTSD diagnosis is based upon. The examiners appear to base the Veteran’s PTSD diagnosis on an in-service stressor that is later stated to not be supported by the evidence of record. In addition, the negative nexus opinions of record did not address, clarify, or reconcile the noted inconsistencies of record on which their opinions were based, nor did the opinions address the lay statements submitted by the Veteran’s family members and fellow serviceman. Furthermore, the Veteran has reported depression symptoms throughout the record and has a diagnosis of major depressive disorder. However, an opinion has not been obtained regarding whether his current depressive disorder is related to his time in service, especially in light of his separation examination, which noted symptoms of depression and excessive worry. As such, the Board finds that new examinations should be obtained upon remand that provide an opinion regarding whether the Veteran’s major depressive disorder is related to his time in service and to clarify the Veteran’s PTSD diagnosis and related in-service stressor. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA clinician regarding the Veteran’s claimed headache condition. Further examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion. (a) The examiner should identify any diagnoses related to headaches during the appeal period (since November 2013). The examiner should discuss the Veteran’s lay statements regarding headache symptomatology. If no diagnosis is present during the period on appeal, the examiner should explain how this conclusion was reached. (b) For any identified diagnosis, the examiner must opine whether the headache condition is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease, including the complaints of headaches during service. The examiner is reminded that a medical opinion based solely upon the absence of documentation in the record (or that does not take into account the Veteran’s reports of symptoms and history) is inadequate and may be returned for clarification. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Any opinion expressed by the VA examiner should be accompanied by a complete rationale 2. Schedule the Veteran for a new VA psychiatric examination with a clinician to determine the nature and etiology of any psychiatric disorder, including PTSD and major depressive disorder. The claims file must be made available to the examiner. (a) If the Veteran meets the criteria for a diagnosis of PTSD at any point during the appeal period, the examiner must identify the stressor or stressors upon which the diagnosis is based and opine as to whether the PTSD is at least as likely as not (a 50 percent probability or greater) related to his active service. In providing the opinion, the examiner should also address the lay statements of record, including those submitted by fellow servicemen and family members. (b) For any other acquired psychiatric disorders diagnosed at any point during the appeal period, including major depressive disorder, the examiner must opine whether each diagnosed disorder at least as likely as not commenced during active military service or is at least as likely as not related to his active service. A complete rationale must be provided for all opinions rendered. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.