Citation Nr: 21061960 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-27 317 DATE: October 5, 2021 REMANDED Service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2005 to April 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In an August 2018 decision, the Board reopened the Veteran's claim for service connection for a mental disability. The Board also remanded the claim for additional development. In May 2021, the Veteran's attorney submitted a request for a 90 day extension of time to submit evidence and argument. The Board granted this request for an extension of time in a June 2021 letter. This requested extension of time has expired and additional evidence and argument has been submitted in support of the Veteran's appeal. Service connection for an acquired psychiatric disorder is remanded. In a May 2019 VA opinion, the examiner found that the Veteran's diagnosed persistent depressive disorder and specified personality disorder more likely than not predated his military service. However, this is the incorrect standard for establishment of a pre-existing condition. As such, the opinion is inadequate. In an August 2020 VA opinion, the examiner noted that at the Veteran's persistent depressive disorder is superimposed over his personality disorder and that the condition is likely aggravated by his military service as evidenced by suicide attempts and hospitalizations. However, the examiner also noted that there is not clear and mistakable evidence that the Veteran's pre-existing condition underwent permanent aggravation during his military service. As there are conflicting findings, the opinion is inadequate. An additional January 2021 VA opinion was obtained as to whether a mental disorder was caused or aggravated by service-connected tinnitus. The Veteran submitted a private medical opinion from Dr. K.G. dated in June 2021. The provider noted that the Veteran's depressive disorder appears to have originated in a military psychological evaluation following the Veteran's first suicide attempt. The provider found that even if the Veteran exhibited some personality disorder traits prior to the military, his function clearly declined in service. The provider found that it is likely that the Veteran's mood disorder developed while he was in service and superimposed on personality disorder. The provider also noted that the Veteran's persistent depressive disorder is aggravated by his service-connected conditions. Although the provider indicated that the Veteran may have had some personality disorder traits prior to the military, the provider failed to address whether it was clear and unmistakable that the Veteran had an acquired psychiatric disorder that pre-existed his service. Furthermore, the examiner asserted that the Veteran's depressive disorder "appears to have" originated in service. The speculative terminology used by this physician does not provide a sufficient basis for an award of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). As such, the opinion is inadequate to decide this claim. Therefore, the Board finds that a further addendum opinion is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to obtain an examination or opinion when developing a service connection claim, even if not statutorily obligated to do so, it must obtain one that is adequate for purposes of the determination being made). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, then obtain an addendum opinion from a qualified VA examiner as to the nature and etiology of the Veteran's claimed acquired psychiatric disorder. Arrange for the Veteran's claims file to be reviewed by a VA examiner for an addendum. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is there clear and unmistakable evidence that the Veteran's diagnosed acquired psychiatric disorder pre-existed his service? (B) If so, is there clear and unmistakable evidence that the Veteran's diagnosed acquired psychiatric disorder underwent no permanent aggravation during service? (C) If so, is such aggravation or increase in severity due to the natural progression of the disease? (D) If there is no clear and unmistakable evidence that such an acquired psychiatric disorder pre-existed the Veteran's service, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, service? (E) If a personality disorder is diagnosed, is there any acquired psychiatric disorder superimposed over the Veteran's underling personality disorder? If there is a superimposed psychiatric disorder then the examiner must opine whether the superimposed psychiatric condition began during service or was caused or aggravated by an in-service injury, event, or disease. The examiner should discuss the service treatment records noting the suicide attempt, VA medical records, and January 2014 disability benefits questionnaire and opinion from the private psychologist. The examiner should also discuss the Veteran's statements regarding the history and chronicity of symptomatology. (Continued on the next page) A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.