Citation Nr: 21064686 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-42 414 DATE: October 21, 2021 REMANDED Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active duty with the United States Navy from December 1976 to February 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Wichita, Kansas. In an August 2018 decision, the Board denied reopening the Veteran's claim for an acquired psychiatric disorder, to include PTSD, based on the determination that newly submitted evidence since the last decision did not raise a reasonable possibility of substantiating the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court issued an Order that granted a Joint Motion for Remand (JMR) dated that same month filed by counsel for both parties, vacated the Board's decision, and remanded the matter to the Board for action in compliance with the Joint Motion. In a March 2020 decision, the Board again denied reopening the Veteran's claim for an acquired psychiatric disorder, to include PTSD, based on the determination that newly submitted evidence since the last decision did not raise a reasonable possibility of substantiating the claim. The Veteran appealed the Board's decision to the Court. In February 2021, the Court issued an Order that granted a JMR dated that same month filed by counsel for both parties, vacated the Board's decision, and remanded the matter to the Board for action in compliance with the JMR. The Board notes that the issue of entitlement to service connection for PTSD was denied in an October 2008 rating decision, which found that the Veteran did not have a confirmed diagnosis of PTSD. In an administrative decision in March 2009, the RO upheld the previous decision, finding that the Veteran's claimed injuries were not incurred in the line of duty. Although the Veteran did not appeal the March 2009 decision or submit any evidence within a year of the decision, the record reflects that he did receive treatment at the VA during that time. The later submitted VA treatment records include mental health treatment records from April 2009 suggesting a diagnosis of PTSD. For purposes of 38 C.F.R. § 3.156(b), "[e]vidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran's claim. There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply." See Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020). Thus, a Veteran's post-decision VA treatment records generated prior to the expiration of the one-year appeal period are constructively received by the VA adjudicator. See id. at 1355. As such, the claimed issue of service connection for PTSD has been characterized as above. 1. Entitlement to service connection for an acquired psychiatric condition, to include PTSD is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. In a January 2020 statement, the Veteran reported that he has continued to receive VA treatment at Eastern Kansas Veterans Affairs Health Care System for the disability on appeal. The Veteran's representative has submitted VA treatment records for the issue on appeal. However, it is unclear if the Veteran's complete VA treatment records were submitted. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Additionally, the Board finds that an additional medical opinion is necessary to properly adjudicate the Veteran's claim. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In August 1978 the Veteran presented to the emergency room with complaints of left elbow contusion. He reported that he had been hit in the left elbow with a wooden stick. The examiner noted the Veteran was oriented, but under the influence of ETOH (alcohol). Other relevant portions of the Veteran's service treatment records include a December 1978 psychiatric consultation recording that the Veteran reported substantial difficulty in tolerating the stress of being in the Navy. He stated that he had very little respect for military authority, was very anxious and depressed being aboard the ship,and that these feelings had been occurring for about a year. Also of record is a Medical Board Report which shows the Veteran had a chronic poor adjustment to military life and had been actively trying to get out of the Navy for at least two years. A psychiatric evaluation indicated immature personality manifested by poor self-image, poor adjustment to military life,and poor tolerance for authority. The Veteran reported similar emotional difficulties prior to enlistment including difficulty with truancy, suspensions, and hitting a teacher. He described himself has excitable, bad-tempered, prone to temper tantrums, and impulsive. The Medical Board found the Veteran suffered from a pre-existing personality disorder, which rendered him unsuitable for further military service. The record also includes post service treatment records dated from 2007 to 2008 with a diagnosis of mood disorder secondary to chronic pain. Also of record is the October 2008 Administrative Line of Duty Decision indicating that the injuries sustained by the Veteran on August 31, 1978, were not incurred in the line of duty and were the result of his willful misconduct. It was determined that the Veteran was intoxicated and involved in a fight with local residents and that his actions involved deliberate or intentional wrongdoing with wanton and reckless disregard of its probable consequences. Additional evidence also includes a statement from a fellow service member who alleges that he was present at the time of the altercation and that the Veteran was not intoxicated and did not provoke the fight. See December 2008 lay statement from K. Crout. The Veteran also submitted a written statement wherein he argued that the assault was unprovoked and was not the result of his own misconduct. See January 2009, VA Form 21-4138, Statement in Support of Claim. In a February 2018 private opinion, the examining psychiatrist concluded that the Veteran's current psychiatric symptoms stemmed from the in-service assault. The psychiatrist further opined that the evidence does "not demonstrate that this Veteran's difficulties predated his military service" and "he did not demonstrate a pattern of dysfunction behaviorally or emotionally." In a May 2021 VA opinion, the VA examiner opined that There is no question that the veteran's primary psychiatric diagnosis is PTSD, with Dissociative Symptoms, with Delayed Expression. This is directly related to the veteran being victimized by a personal assault in August 1978... After an excellent beginning to his active duty service, after the assault, he began escalating his use of alcohol, was unable to maintain his military responsibilities, required psychiatric assessment, and was eventually discharged from the Navy without the possibility of enlistment. These characteristics indicate a precipitous decline in functionality, often seen after exposure to trauma and the onset of mental illness. Therefore, there is no question that his PTSD is a direct result of the August 1978 assault, which appears to have occurred through no fault of his own. In a June 2021 private opinion, a private psychiatrist opined that The veteran has consistently displayed very profound symptoms of mental illness consistent with trauma-based disease and a concomitant substance use disorder from that timeframe. In 2010, the veteran's behaviors, actions, and symptoms have forced him to lead a life of social isolation to preserve his remaining functionality. The private psychiatrist also stated that notably, the veteran had no evidence of mental illness prior to his active duty service. Eventually, all spheres of his life were wholly marred by the effects of his activeduty service and the trauma he experienced while in Hawaii. My conclusions will show that Mr. [REDACTED] psychiatric symptomatology began definitively, after being the personal assault in August 1978, and steadily escalating since that timeframe. The Board finds the medical opinions of record are inadequate to adjudicate the claim. Here, the opining clinicians failed to discuss the evidence that indicated the Veteran had psychiatric symptoms and/or a personality disorder prior to service. The evidence indicates that the Veteran had a chronic poor adjustment to military life and had been actively trying to get out of the Navy for at least two years. A psychiatric evaluation indicated immature personality manifested by poor self-image, poor adjustment to military life, and poor tolerance for authority. The Veteran reported similar emotional difficulties prior to enlistment including difficulty with truancy, suspensions, and hitting a teacher. He described himself as excitable, bad-tempered, prone to temper tantrums, and impulsive. The examinations and opinions do not include a discussion of the pre-existing psychiatric symptoms, and whether they indicate a pre-existing psychiatric disorder. As such, the Board finds that the current examinations and opinions are inadequate as they relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis has reduced probative value. Given the inadequate reasoning provided, and the reliance on an inaccurate factual basis, remand to obtain an addendum opinion is necessary. Additionally, the Board finds that the psychiatric condition under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert (IME), under 38 C.F.R. § 3.328, is required in the present case. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated treatment records from the Eastern Kansas Veterans Affairs Health Care System (VAHCS) since January 2020 and associate them with the claims file. 2. After completion of step 1, the AOJ should secure an independent medical expert (IME) opinion under 38 C.F.R. § 3.328, for the issue of service connection for an acquired psychiatric condition. The AOJ must follow its established procedures for requesting an advisory IME opinion on the acquired psychiatric condition issue, furnished by a medical school, university, or clinic. The entire claims file should be made available to and be reviewed by the IME examiner, and it should be confirmed that such records were available for review. The need to interview the Veteran is left to the discretion of the examiner. An explanation for all opinions expressed must be provided. THE IME EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRY: Identify the correct diagnosis/es of the Veteran's mental disorder(s), including consideration of mood disorder secondary to chronic pain, and PTSD. The examiner should provide opinion as to whether the in-service diagnosis of immature personality manifested by poor self-image, poor adjustment to military life, and poor tolerance for authority was correct or a misdiagnosis. If the diagnosis of immature personality was correct, whether it is at least as likely as not that the Veteran incurred an acquired psychiatric disorder during service superimposed on the personality disorder. Whether there is clear and unmistakable evidence that an acquired psychiatric disorder pre-existed service and, if so, whether there is clear and unmistakable evidence that such acquired psychiatric disorder was not permanently aggravated during service. Alternatively, whether it is at least as likely as not (i.e., 50 percent or more probable) that the Veteran has an acquired psychiatric condition, claimed as PTSD, as the result of his military service, to include an assault in August 1978? In rendering the above opinion, the IME examiner should consider the following pertinent evidence: the Veteran's service treatment records and service personnel records to include Medical Board Report; a December 2008 lay statement from K. Crout; a January 2009, VA Form 21-4138, Statement in Support of Claim; the private 2018 medical opinion; the May 2021 VA opinion; and the June 2021 private opinion. The examiner should also discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, as well as his reported psychiatric history pre-service and post-service. S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The term "clear and unmistakable" means "undebatable." (continued on the next page) Any opinion expressed by the Independent Medical Expert opinion must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.