Citation Nr: 21066423 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-23 788 DATE: November 1, 2021 REMANDED Entitlement to a compensable disability rating for postoperative hiatal hernia with abdominal scar is remanded. Entitlement to a disability rating for painful abdominal scar, postoperative umbilical hernia is remanded. The issue of entitlement to service connection for an acquired psychiatric condition is remanded. The issue of entitlement to service connection for angina is remanded. The issue of entitlement to service connection for a heart problem other than angina is remanded. The issue of entitlement to service connection for the residuals of a cerebrovascular accident (stroke) is remanded. VETERAN CONTENTIONS The Veteran contends that he experiences bulging in the same region where his service-connected hernia previously existed and that the scar from his hernia repair is painful, easily becomes irritated and inflamed, and is odorous. The Veteran further contends that he has experienced depression and anxiety which began in service and has since lead to chronic PTSD, angina, heart problems, and stroke. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1978 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and June, July, and October 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). There was a May 2021 Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. 1. Entitlement to a compensable disability rating for postoperative hiatal hernia with abdominal scar is remanded. The record is somewhat muddled with respect to the Veteran's hernia scar disability. It appears that the Veteran was treated for an epigastric hernia just above the umbilicus during his time in service. See 6/1/2018 Service Treatment Record. A small ventral hernia was found in February 2012 that was unrelated to the hernia repaired in service. See 2/29/2012 VA Examination. The Veteran was service connected for a hiatal hernia in August 2012 at a noncompensable rating. Then, in May 2017, a separate evaluation was granted for a painful abdominal scar because "the law allows additional compensation based on scars, which are painful or unstable even if compensable based on other factors." See 5/18/2017 Rating Decision. Because the Veteran was only treated for one hernia while in service, an epigastric hernia above the umbilicus, it appears that the RO attempted to address the painfulness of the Veteran's scar by affording him a separate rating. However, a more recent VA examination noted two separate scars, one inferior to the umbilicus and one superior to the umbilicus. See 10/15/2018 C&P Examination. That examination also noted that the Veteran denied a history of hiatal hernia repair and his service treatment records were silent with regard to such a repair. Id. First, clarification needs to be provided regarding whether the Veteran has, in fact, been service connected for two separate scars or if he has been service connected for one scar with a separate rating due to pain. If the Veteran has been service connected for two scars, a new examination is needed to clearly and distinctly identify the two scars and evaluate each distinct scar for pain and instability. If the Veteran has, instead, been service connected for one scar under separate diagnostic codes, an examination must be provided that examines that scar, and that scar alone, for pain and instability. 2. Entitlement to a disability rating for painful abdominal scar, postoperative umbilical hernia is remanded. Although "the mere passage of time" does not itself trigger the duty to provide a new medical examination, "additional evidence showing a change in [the relevant] condition" may do so. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Reexamination is required when "evidence indicates there has been a material change in a disability or that the current rating may be incorrect." 38 C.F.R. § 3.327(a) (2020). To trigger the need for a new examination, there must at least be an allegation that the claimant's condition has worsened. Palczewski, 21 Vet. App. at 182. Here, the Veteran indicated that he felt a knot in the area where he had his hernia operation in service. See 5/19/2021. Therefore, a VA Examination is needed to determine whether the hernia that the Veteran experienced in service has reoccurred. 3. The issue of entitlement to service connection for an acquired psychiatric condition is remanded. When VA undertakes to provide a VA examination, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). Thus, if the Veteran's assertions or contentions bring the adequacy of the examination into question, the Board must address this material issue. Here, one VA examination was conducted in furtherance of the Veteran's claim for entitlement to service connection for an acquired psychiatric condition. During the Board hearing, the Veteran's representative expressed concern with the VA examiner's emphasis on the fact that the Veteran did not seek psychiatric treatment while in service. See 5/19/2021 Hearing Transcript. Although the examiner considered the combined lack of treatment while in service with the 20-year gap between service and the identification of depressive symptoms in making his negative nexus determination, he also countered the Veteran's experience of the availability of and repercussions for seeking treatment. Thus, it appears that the examiner relied heavily on the absence of evidence in the Veteran's service treatment records to make his determination, which is impermissible. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Additionally, while the examiner noted that the Veteran did not have a diagnosis for PTSD that conformed with the DSM-5 criteria based on that day's evaluation and considered a number of psychiatry and psychology notes contained in the record, he did not consider the PTSD diagnosis made in a private psychology assessment. See 7/18/2018 Medical Treatment Record Non-Government Facility. Thus, the examination opinion is inadequate for VA purposes. A private nexus opinion was associated with the record, but that opinion is also inadequate for VA purposes. Opinions based on inaccurate factual premises are entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The private examiner concluded that the Veteran engages in reckless and self- destructive behavior, namely the consumption of alcohol to self-medicate his PTSD symptoms. See 7/1/2021 Medical Treatment Record-Non-Government Facility. However, that determination is internally inconsistent, because elsewhere the examiner stated that the Veteran was a social drinker who completely stopped drinking in 2011, and inconsistent with the record which noted the Veteran as having denied alcohol use. See 5/11/2020 CAPRI. Thus, remand to obtain an adequate opinion assessing the nexus, or lack thereof, between the Veteran's psychological claims and his time in service is needed. The issue of entitlement to service connection for angina is remanded. Two or more issues are inextricably intertwined if one claim could have significant impact on the other. Harris v. Derwinski, 1 Vet. App. 180 (1991). In this case the Veteran contended that he experienced chest pain secondary to the psychological and physical conditions developed while in service. See 7/18/2018 VA 21-526EZ. Secondary service connection is predicated on the existence of an already service-connected disability. See 38 C.F.R. § 3.310. And, the Veteran's claim for entitlement to service connection for acquired psychiatric conditions is being remanded for further development. The issue of the Veteran's entitlement to service connection for angina is thus dependent on the foregoing development and ultimate disposition of the issue of the Veteran's entitlement to service connection for acquired psychiatric condition. Because the two issues are inextricably intertwined, the issue of service connection for angina must be deferred. 4. The issue of entitlement to service connection for a heart problem is remanded. Because the issue of entitlement to service connection for a heart problem is similarly inextricably intertwined with the Veteran's entitlement to service connection for an acquired psychiatric condition, it too must be deferred. 5. The issue of entitlement to service connection for stroke is remanded. Likewise, the issue of entitlement to service connection for stroke if deferred. The matters are REMANDED for the following action: 1. Clarify whether the Veteran has been service connected for two separate scars as a result of hernia repair or if he has been service connected for one scar with a separate rating due to pain. After providing clarification, schedule the Veteran for a VA examination with an appropriate clinician to determine the current condition of the Veteran's scar(s). If the Veteran has been service connected for two scars, the examiner should clearly and distinctly identify the two scars and evaluate each distinct scar for pain and instability. If the Veteran has, instead, been service connected for one scar under separate diagnostic codes, the examiner should identify all scars appreciable in the relevant area but evaluate only the service-connected scar for pain and instability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine whether the Veteran's umbilical hernia, which occurred during service, has recurred. If it has, evaluate the current state of the hernia. 3. Return the claims file to the VA examiner who conducted the May 28, 2019 C&P Examination, if available. If that examiner is not available, send the claims file to another examiner to address the following: a. Please identify any current psychological condition by diagnosis. b. For any disorder identified, please state whether it is at least as likely as not that the disorder had its onset in or is otherwise related to service. c. If the Veteran has a current diagnosis of PTSD, please identify the particular stressor(s) upon which PTSD is based. Please specifically state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed PTSD is causally related to an in-service stressor. d. If a psychological condition other than PTSD is diagnosed, please provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed psychological condition is related to an in-service stressor. e. Please comment, to the best of your ability, whether the prodromal period for any currently diagnosed psychiatric condition as likely as not had its onset during the Veteran's period of active service or within one year following discharge. A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided . S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.