Citation Nr: 21066432 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-40 309 DATE: November 1, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and a sleep disorder, to include as due to a service-connected disability, is remanded. Entitlement to service connection for headaches, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2021. A transcript of the hearing is of record. The Board notes that, as the record reflects several possible psychiatric diagnoses, including major depressive disorder, generalized anxiety disorder, and posttraumatic stress disorder (PTSD), among others, it has re-characterized the Veteran's claims for service connection for depression, anxiety, and a sleep disorder as one for service connection for any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). While the Board regrets further delay, the Veteran's claims must be remanded for additional development. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran has asserted several theories of entitlement as to his claims for service connection for an acquired psychiatric disorder. The Veteran underwent a psychological evaluation by a private psychologist, Dr. B.B., in May 2018. Dr. B.B. opined that it is at least as likely as not that the Veteran's deployment to the isolated island of Diego Garcia "resulted in an anxiety state and depressive reaction that has persisted to this day," which manifest currently as generalized anxiety disorder and major depressive disorder. Dr. B.B. continued, however, that "there are no other incidents in the record that would account for his persistent condition given that these symptoms existed prior to his [wife's] death." The Board notes that the record seems to suggest the opposite, and is currently negative for any complaints from the Veteran or treatment for any acquired psychiatric disorder until his wife's death in the late 2000's. Despite the Veteran reporting severe anxiety and depression throughout his deployment to Diego Garcia, his separation examination in January 1977 was normal, and he specifically denied frequent trouble sleeping and depression or excessive worry in a contemporaneous report of medical history while nevertheless reporting a history of other ailments. An August 2012 VA treatment record notes the Veteran reporting a history of significant depression after his wife died in a boating accident in 2007, and specifically denied history of depression prior to that. A December 2014 private treatment record notes that Veteran reporting that anxiety and depression began after his wife's death. The Board notes that it was not until early 2016, around the time of his service connection claim, did the Veteran begin to discuss to a VA provider that he experienced depression and anxiety while stationed on Diego Garcia. The Board nevertheless acknowledges that subsequent encounters with his VA providers in 2016, particularly with the Veteran's social worker, T.S., note the Veteran coming to the apparent self-realization that the feelings of isolation and lack of support he initially experienced during his assignment to Diego Garcia "caused significant problems that increased rather than ameliorated over time." See May 18, 2016 VA Mental Health Outpatient Note. In view of the foregoing, a VA examiner's clarifying opinion must be obtained. Further, the Board notes that the Veteran has also asserted as a separate theory of entitlement that he suffers from back, neck, and left arm disabilities that have resulted in "anxiety and sleepless nights." See April 24, 2020 Statement in Support of Claim. While the Veteran is not currently service-connected for a musculoskeletal disability for the purposes of secondary service connection (see 38 C.F.R. § 3.310), a separate appeal of service connection for a cervical spine, lumbar spine, and left upper extremity neuralgia is currently pending before the Board under the under the Appeals Modernization Act (AMA) framework. In a July 2020 VA Form 10182, the Veteran requested a hearing with a VLJ with the opportunity to submit evidence. To date, the Veteran has yet to be scheduled for this hearing and review of the record does not indicate that this hearing request, or the appeal as a whole, has been withdrawn. The Board's internal procedures under AMA mandate that separate appeals be adjudicated in separate decisions. As such, adjudication of the Veteran's claim for an acquired psychiatric disorder on a secondary service connection basis would be premature at this point pending the outcome of the Veteran's claims for entitlement to service connection for cervical spine, lumbar spine, and left upper extremity neuralgia disabilities. 2. Entitlement to service connection for headaches. The Veteran has a history of headaches that he asserts either began in service or were caused or aggravated by an acquired psychiatric disorder. 38 C.F.R. §§ 3.303, 3.310. The record reflects one in-service complaint of headaches in December 1974, as well as the Veteran's statements that experienced excruciating headaches in service from the cement powder he was exposed to in his Military Occupational Specialty as a Constructionman. See May 24, 2016 VA Mental Health Counseling Note. The record also suggests that the Veteran's headaches may be secondary to the cervical spine disability that is separately on appeal under the AMA. No medical opinion is of record, however, that addresses the etiology of the Veteran's headaches. The matters are therefore REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file, to include any records dated since April 2020. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)) to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine the nature and etiology of any and all acquired psychiatric disorders. The examiner is asked to address the following: a) List all diagnosed psychiatric disorders. The examiner's attention is directed to May 2018 diagnoses offered by Dr. B.B. of major depressive disorder and a generalized anxiety disorder, as well as VA treatment records noting anxiety disorder, depression, insomnia, and an adjustment disorder with mixed anxiety and depressed mood. If a trauma and stressor-related disorder such as PTSD is diagnosed, the examiner should list all traumatic and stressful events contributing to such a disorder. b) Provide an opinion as to whether is it at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disorder had its onset in, or is otherwise related to, the Veteran's period of active-duty service, to include his service on the island of Diego Garcia? The examiner should address the May 2018 and December 2018 analyses provided by Dr. B.B. c) If the answer to b) is negative, is at least as likely as not (50 percent probability or greater) that an acquired psychiatric disorder (i) was caused (in whole or in part) or (ii) aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by any musculoskeletal disability or disabilities. The examiner must provide separate opinions and rationales for secondary causation and aggravation. The examiner should elicit a full history from the Veteran and consider all lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A complete rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current headache disability onset during service or is otherwise related to an in-service injury, event, or disease, to include in the performance of his military duties as a Constructionman. The examiner should address the Veteran's December 1974 in-service treatment for a headache and his assertion that the cement powder used in his duties caused excruciating headaches. The examiner should also address whether any current headache disability of the is at least as likely as not (a) caused, or (b) aggravated (worsened beyond its natural progression) by any acquired psychiatric disorder, to include medication, and/or a cervical spine disability. The examiner should elicit a full history from the Veteran and consider all lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A complete rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. (Continued on the next page) 4. After the Board issues a separate decision on the claims of entitlement to service connection for cervical spine, lumbar spine, and left upper extremity disabilities currently pending under a separate AMA appeal, or the Veteran withdraws that appeal in its entirety, readjudicate the claims for service connection for an acquired psychiatric disorder and a headache disability based on the entirety of the evidence. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.