Citation Nr: 21072917
Decision Date: 12/06/21	Archive Date: 12/06/21

DOCKET NO. 15-42 000
DATE: December 6, 2021

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to pain from service-connected neck scars, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1969 to December 1970.

In a February 2020 decision, the Board denied the claim. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, the Court granted a Joint Motion for Remand (JMR), which vacated the Board's decision and remanded the Veteran's appeal to the Board for action consistent with the terms of the JMR. The claim was most recently before the Board in May 2021.

Entitlement to service connection for an acquired psychiatric disorder is remanded.

The Board is unable to make an informed decision on the issue of service connection for an acquired psychiatric disorder because the August 2021 and September 2021 VA examination opinions are inadequate. The VA examiner appeared to impermissibly focus his secondary service connection opinion on a lack of records prior to 2014 supporting the Veteran's psychiatric diagnoses. Additionally, the examiner appeared to focus on whether the Veteran's acquired psychiatric disorder was caused by non-service-connected neck pain from a musculoskeletal etiology instead of his service-connected painful neck scars limiting his mobility. Since the VA examination opinions are inadequate, a new VA examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007).

The matters are REMANDED for the following action:

Forward the claims file and copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran's acquired psychological disorder claim. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled.

After reviewing the claims file, the examiner is asked to answer the following questions:

(a) Is it at least as likely as not (50 percent probability) that any currently diagnosed psychological disorder was incurred in or is otherwise related to service?

The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion.

(b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed psychological disorder is proximately due to (caused by) the Veteran's service-connected painful neck scar limiting his mobility disability?

The examiner is asked to review and discuss the Veteran's contention that he became depressed because he can no longer work in his trade as a truck driver due to his neck scar disability. 

(c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed psychological disorder has been aggravated by the Veteran's service OR service-connected painful neck scar disability?

The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation.

A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why that is and what additional information is needed to provide the opinion.

 

 

L. BARSTOW

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. G. Perkins, 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.