Citation Nr: 21003064 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-43 072 DATE: January 19, 2021 ORDER The Board of Veterans’ Appeals (Board) decision dated April 19, 2019 is vacated. REMAND The Veteran’s claim of service connection for an adjustment disorder, with mixed anxiety and depression, is remanded. FINDING OF FACT The April 19, 2019 Board decision addressing the issue of entitlement to a service connection for an adjustment disorder did not consider the Veteran’s vaginal and uterine disorder on a secondary basis. CONCLUSION OF LAW The criteria for vacatur of the Board’s Apri decision have been met. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.904 (2019). REASONS AND BASES FOR FINDNG AND CONCLUSION The Veteran served on active duty as a legal clerk and court reporter in the United States Navy from September 1976 until December 1983 and from January 1996 until October 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota and from an April 2019 Board decision. Entitlement to service connection for adjustment disorder with mixed anxiety and depression The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. As in the present case, denial of due process includes a failure to consider relevant evidence that was constructively in the Board’s possession. The Board denied the Veteran’s claim on the ground that “the Veteran’s current acquired psychological disability is distinct and separate from symptoms noted in service and was neither incurred in nor caused by her military service, to include as caused or aggravated by service-connected tinnitus.” In reaching this conclusion, the Board relied on a February 2016 psychological VA examination, which found the Veteran’s tinnitus to be less likely than not the cause of the Veteran’s adjustment disorder. See April 2019 BVA Decision. The Board notes that, at the time of the February 2016 psychological examination the Veteran was not service connected for vaginal and uterine issues, nor did the Veteran raise the issue at the examination. The Board finds, though, that at the time of the April 2019 Board decision the issue of vaginal and uterine disability had been raised by the record and was intertwined with the Veteran’s claim for an adjustment disorder. Specifically, a review of the record shows that of record is an August 2018 Primary Care Note. The note reads: “60 yo female states that she has been diagnosed with adjustment disorder and mixed mood…the big major thing is my rectocele and now through the year I have bowel and gas loss of control of it. I sometimes have accidents with my stool. I don’t know if I should take surgery. While at work here on Friday, I have accidents all the time and I carry extra underwear and pads and I am anxious all the time. I need a work note so I can work full time.” See October 2018 Medical Treatment Record – Non – Government Facility. While the February 2016 VA examination was not inadequate as the examiner considered all of the pertinent information at the time, to include the statements from the Veteran, the Board finds that the April 2019 Board decision must be vacated. The VA has a duty to consider all issues raised either by the claimant or by the evidence of record. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008). In the present case, while the Veteran did not raise the issue, it was clearly raised by the record, and as such there was a duty to assist error when the Board did not take the Veteran’s vaginal and uterine disabilities into consideration. On the Board’s own motion, the April 2019 Board decision is vacated in its entirety. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. REASONS AND BASES FOR REMAND A VA examination and medical opinion has not been obtained as to the claim of service connection for an adjustment disorder with mixed anxiety and depressed mood secondary to a vaginal and uterine disability. In February 2016, the VA physician only opinioned as to service connection secondary to tinnitus. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103 (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the Board finds that all 4 elements have been met, as without a VA examination there is insufficient competent medical evidence to determine whether the Veteran’s current adjustment disorder was caused by her military service. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s adjustment disorder. The examiner must opine whether the Veteran’s adjustment disorder is at least as likely as not caused by her vaginal and uterine disability. Attention is called to the file of service treatment records. If the examiner cannot provide the above opinions, the examiner should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies. The examiner must provide a rationale for any opinions provided. The Board advises that a generalized or conclusory statement is not sufficient for the purpose of adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.