Citation Nr: 21070343 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-50 827 DATE: November 23, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to September 2011. The awards and decorations for her service include a Combat Action Badge among others. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Boise, Idaho. In September 2019, the Board granted the petition to reopen the claim for service connection for an acquired psychiatric disorder and remanded the instant matter for additional development. Service Connection Acquired Psychiatric Disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder. Specifically, the Veteran has asserted that she experienced combat exposure, experienced the suicide of a fellow servicemember in her unit, and military sexual trauma during active service that resulted in her acquired psychiatric disorder. See VA Form 21-0781, Statement in Support of Claim for PTSD, December 27, 2011; see VA treatment record, December 6, 2011. Additionally, the Veteran seems to assert that her psychiatric symptoms had their onset during active service and have continued since. Initially, the Board notes that the Veteran's service treatment records and military personnel records indicate the Veteran was hospitalized three times for psychiatric reasons during her active service in 2011, was demoted and discharged from the military due to substance abuse, and that she experienced adjustment problems with irritability after returning from deployment. Moreover, the Board notes the Veteran was awarded a Combat Action Badge, which is accepted as conclusive evidence of participation in combat operations. Pursuant to the Board's September 2019 remand, a January 2020 VA examination was conducted. The VA examiner diagnosed the Veteran with stimulant use disorder, in sustained remission and opined the Veteran's psychiatric disorder was less likely than not to have had its onset or to be caused by service. In this regard, the examiner noted there was a clear report of the Veteran abusing drugs prior to service. Additionally, the examiner found the Veteran's symptoms did not meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD). The examiner also noted that there was no evidence in the empirical literature that substance abuse was caused by external events. Moreover, the VA examiner opined that the Veteran's substance abuse disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness because there was no evidence that the Veteran's substance abuse was exacerbated beyond its normal progression. In this regard, the examiner noted that the course of the illness was consistent with the natural history of the disorder, and that there was clear evidence the Veteran was offered treatment for this illness but she rejected treatment. The VA examiner also noted that the Veteran denied psychiatric symptoms on her medical intake in service, and that one physician during service suspected borderline personality disorder but that, since becoming sober, she no longer showed evidence of such disorder. Finally, the January 2020 VA examiner also noted the Veteran was diagnosed with a variants of substance abuse disorder and some records of a diagnosis of PTSD. However, the PTSD diagnosis was based on self-diagnosis, and that in 2010 the Veteran denied such symptoms. The examiner noted the Veteran's reports are noted to substantially change, calling into question her reliability and credibility of self-reports. The VA examiner opined that, using a causation analysis approach, there was a clear lack of temporal association between the stated stressors related to her deployment and the onset of symptoms; there was a clear lack of consistency of attribution; there was a clear lack of strength of association between the stated stressors and the relative risk that such events would precipitate such symptoms; there was a lack of plausibility of explanation; and there was a lack of a dose response curve. However, this opinion is inadequate to decide the claim. In this regard, the VA examiner did not address the Veteran's statements and contentions regarding the onset and continuity of her symptoms, in-service treatment and hospitalization for psychiatric symptoms, psychiatric diagnoses of record shown in post-service medical treatment records, reports of adjustment issues after deployment, and reports of military sexual trauma. Additionally, the VA examiner relied on an inaccurate factual premise, namely, that the diagnosis of PTSD was mainly on self-reports of symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, a remand is necessary to obtain an addendum VA opinion. Stegall v. West, 11 Vet. App. 268 (1998). The matters are 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 her representative and afford her an opportunity to submit any copies in her 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). Following the receipt of outstanding record, forward the record and a copy of this remand to the VA clinician who conducted the January 2020 VA examination or, if that clinician is unavailable, to another similarly qualified VA clinician for preparation of an addendum opinion. If the clinician selected determines that the information requested below cannot be provided without further in-person examination of the Veteran, then such an examination should be scheduled. The examiner must indicate that the record was reviewed. A complete rationale should be provided for all opinions given and must reflect a thorough review of the record, to include the service treatment records and the lay statements from the Veteran. The examiner should respond to the following questions: (A) Identify all current acquired psychiatric disorder(s) that have been present at any time since October 2013. If it is determined that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. The examiner should reconcile the September 2016, October 2016, and continuing post-service VA treatment records reflecting a diagnosis of PTSD. The examiner is advised that the Veteran should be evaluated under the DSM-5 criteria. (B) With respect to any currently diagnosed PTSD, is it at least as likely as not (50 percent probability or greater) related to a verified in-service stressor and/or fear of hostile military or terrorist activity? The examiner is advised that the Veteran's participation in combat activities is presumed. (C) For any diagnosed acquired psychiatric disorder(s) other than PTSD, is at least as likely as not (50 percent probability or greater) that each disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran's military service? The examiner is advised to address all lay statements and contentions of the Veteran, to include her combat experiences during deployment, suicide of a fellow servicemember, and any alleged military sexual trauma. (D) For any diagnosed acquired psychiatric disorder, the examiner is to provide an opinion as to whether such diagnosis clearly and unmistakably pre-existed service. (E) If there is clear and unmistakable evidence that such acquired psychiatric disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing acquired psychiatric disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's acquired psychiatric disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (F) If there is no clear and unmistakable evidence that the Veteran's acquired psychiatric disorder is a disorder that pre-existed service, the examiner is asked to opine as to whether it is at least as likely as not (probability of 50 percent or greater) that the disorder had its onset during, or is otherwise related to, the Veteran's military service. The examiner is advised to address all lay statements and contentions of the Veteran, to include her combat experiences during deployment, suicide of a fellow servicemember, and any alleged military sexual trauma. A rationale should be provided for all opinions 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 for the Board 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. All opinions provided must be thoroughly explained, and a complete and detailed rational for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The clinician is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.