Citation Nr: 21069987 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-17 094 DATE: November 22, 2021 ORDER Entitlement to service connection for adjustment disorder with anxiety is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The appellant's adjustment disorder with anxiety is etiologically related to a jeep accident during a period of ACDUTRA or INACDUTRA. CONCLUSION OF LAW The criteria for service connection for adjustment disorder with anxiety have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served with the National Guard between November 1978 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant service connection for a low back disability, a left leg disability, headaches, and an acquired psychiatric disorder. A Board hearing was held in December 2018. A transcript is of record. In April 2019 and November 2020, the Board remanded the appellant's claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. In its November 2020 remand, the Board found that the appellant's alleged injury occurred either during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). An opinion was requested as to whether any of the appellant's alleged disabilities are etiologically related to the same. The claims have returned to the Board for further appellate proceedings. The Board finds there is sufficient evidence of record to grant service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with anxiety. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Relevantly, the term "active military, naval, or air service" includes any period of ACDUTRA or INACDUTRA during which the individual concerned was disabled or died from an injury incurred in the line of duty. 38 C.F.R. § 3.6(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). A May 2021 VA examination report shows that the appellant was diagnosed with an adjustment disorder with anxiety. See May 2021 VA examination report. Thus, the first Shedden element is met and not in dispute. The appellant contends that his disabilities are a result of a jeep accident during ACDUTRA while at Fort A.P. Hill, Virginia. See Board Hearing Tr. at 3-6. The appellant submitted service treatment records that include an October 1981 incident report describing a jeep accident and notations showing treatment received. See STRs. The incident report indicates that the appellant was transferred to DeWitt Army Community Hospital located at Fort Belvoir, Virginia. Id. In October 2019, the AOJ requested the appellant's service and treatment records from NPRC. See October 2019 VA Form 21-3101. The AOJ was notified that no records exist. See November 2019 Correspondence. The AOJ then requested the appellant's National Guard records. See December 2019 VA Form 21-3101. Subsequent correspondence from the Army Records Processing Center in May 2020 indicates that no records for the appellant were available. See June 2020 Reserve record. Resolving doubt in favor of the appellant, the Board finds that the appellant was either in ACDUTRA or INACDUTRA at the time of the alleged injury. The evidentiary record as supplemented by the appellant includes an October 1981 incident report that describes the alleged jeep accident at Fort A.P. Hill, the resulting treatment, and a transfer to the Fort Belvoir hospital. Service records to aid in the characterization of the appellant's service are unavailable. The record is limited to an incident report that the appellant contends was the cause of his disabilities. See January 2014 treatment records. Indeed, the report itself was generated on a government form with the appellant's address simply described as the 158th Cavalry, Maryland. Id. Thus, resolving doubt in favor of the appellant, the Board finds that he was either on ACDUTRA or INACDUTRA for the purposes of this appeal. Therefore, the second Shedden element is met. The narrow issue that remains before the Board is whether the appellant's adjustment disorder with anxiety is etiologically related to the jeep accident during ACDUTRA/INACDUTRA. In July 2021, a clinician opined that "[i]t is as likely as not that the appellant's . . . adjustment disorder with anxiety is secondary to an injury that incurred during ACDUTRA/INACDUTRA, to include a documented jeep accident therein." See July 2021 VA addendum opinion. The clinician reviewed the appellant's May 2021 VA examination report, the Board's November 2020 remand, and the appellant's treatment records. Id. The Board finds the clinician's opinion is probative. Thus, the third Shedden element is met. Accordingly, the Board finds that the appellant's adjustment disorder with anxiety is etiologically related to his jeep accident that occurred during ACDUTRA/INACDUTRA. Therefore, the criteria for service connection for the appellant's adjustment disorder with anxiety have been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a left leg disability is remanded. 3. Entitlement to service connection for headaches is remanded. As noted above, the Board remanded these issues for an examiner to opine as to whether the disabilities are etiologically related to his jeep accident. The AOJ supplemented the record with VA examination reports in May 2021. As to each disability, the examiner opined that the appellant's disabilities were unrelated to the jeep accident. See May 2021 VA examination reports. The examiner opined that "even when taking the [appellant's] statements as true . . ., there is no evidence of medical care." Id. The VA examiner improperly discounted lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion. For the reasons explained above, the VA examiner's opinion is inadequate for adjudicative purposes and a new examination is required. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). 4. Entitlement to service connection for PTSD is remanded. The AOJ supplemented the record with a VA examination report in May 2021. The examiner opined that the Veteran does not meet the DSM-5 criteria for a diagnosis of PTSD. See May 2021 VA examination report. However, VA treatment records and private medical records both show a diagnosis of PTSD in 2019 and 2021. See August 2021 VA treatment records, March 2019 private medical records. Without more to explain why the appellant did not meet the DSM-5 criteria, the May 2021 VA examination report is inadequate. A new examination is required on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the appellant received for his back disability, leg disability, headaches, and PTSD. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the appellant and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the appellant for an examination to determine the nature and etiology of his low back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the appellant, the examiner should identify all disabilities present. For each identified disability, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the appellant's low back disability is related to an injury incurred during ACDUTRA/INACDUTRA, to include a documented jeep accident therein? The examiner is to discuss the October 1981 incident report describing the jeep accident. In rendering these opinions, the examiner is advised that the appellant is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the appellant's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the appellant's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in number 1 above is completed, schedule the appellant for an examination to determine the nature and etiology of his left leg disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the appellant, the examiner should identify all left leg disabilities present. For each identified disability, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the appellant's left leg disability is related to an injury incurred during ACDUTRA/INACDUTRA, to include a documented jeep accident therein? The examiner is to discuss the October 1981 incident report describing the jeep accident. In rendering these opinions, the examiner is advised that the appellant is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the appellant's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the appellant's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the development in number 1 above is completed, schedule the appellant for an examination to determine the nature and etiology of his headaches. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the appellant, the examiner should identify all disabilities present. For each identified disability, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the appellant's headaches are related to an injury incurred during ACDUTRA/INACDUTRA, to include a documented jeep accident therein? The examiner is to discuss the October 1981 incident report describing the jeep accident. In rendering these opinions, the examiner is advised that the appellant is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the appellant's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the appellant's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After the development in number 1 above is completed, schedule the appellant for an examination to determine the nature and etiology of his PTSD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the appellant, the examiner is asked to respond to the following inquiries: If PTSD is currently diagnosed, the examiner should identify the specific stressors that led to the disorder. If PTSD is not currently diagnosed, the examiner should identify the specific stressors that led to the previous PTSD diagnosis. See August 2021 VA treatment records, March 2019 private medical records. In rendering these opinions, the examiner is advised that the appellant is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the appellant's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the appellant's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the appellant and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.