Citation Nr: 21074417 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 13-09 586A DATE: December 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) to include adjustment disorder with depressed mood, to include secondary to service-connected conditions is denied. The appeal concerning entitlement to service connection for an acquired psychiatric condition for Chapter 17 medical benefits purposes only under 38 U.S.C. § 1702 is dismissed. REMANDED Entitlement to service connection for back injury is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 1, 2015 is remanded. Entitlement to service connection for bilateral atrophy of the testicles is remanded. FINDING OF FACT 1. The Veteran does not have a current diagnosis of an acquired psychiatric disorder other than PTSD that is secondary to a service-connected condition or related to an in-service event, injury or disease. 2. The issue of presumptive eligibility for Chapter 17 benefits for an acquired psychiatric condition under 38 U.S.C. § 1702 is rendered moot by reason of an equal or greater benefit having been established by the grant of service connection for PTSD. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The appeal concerning the issue of presumptive eligibility for Chapter 17 benefits for an acquired psychiatric condition under 38 U.S.C. § 1702 is dismissed as moot. 38 U.S.C. §§ 1702, 1710; 38 C.F.R. § 17.37; 17.109, 19.22, 20.104, 20.903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1965 to September 1968. In November 2019, the Veteran testified at a Board hearing. The transcript is of record. In September 2020, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran's claims of entitlement to service connection for degenerative joint disease of the left knee, PTSD, infertility, special monthly compensation on account of loss of use of a creative organ, and TDIU as of December 1, 2015 were granted in an October 2021 rating decision. As such, these issues are no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. 1. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood The Veteran filed a claim in October 2011 contending entitlement to service connection for an acquired psychiatric disorder, to include PTSD. An October 2021 rating decision granted service connection for PTSD at 50 percent disabling effective October 6, 2011, the date of claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) 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." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected condition and shall be service connected on a secondary basis. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already service-connected disability. Id. In October 2021 the VA examiner opined that the Veteran's previously diagnosed adjustment disorder, depressive disorder and panic and anxiety disorders are accounted by his PTSD. The examiner noted that the Veteran's initial diagnosis of adjustment disorder was made when he was transitioning into retirement, which was the time it appeared that his PTSD symptoms became more apparent. Thus, the examiner concluded that the Veteran's only diagnosis is PTSD. The October 2021 VA examiner's opinion correlates with the February 2012 VA examiner's findings. At the February 2012 examination a diagnosis of adjustment disorder with depressed mood was reported but the examiner explained it was related to ("better explained by") the Veteran's recent retirement and not to military service. See VA examination February 2012. The evidence of record includes an October 2011 psychological evaluation by private clinician Dr. S.W. reporting diagnoses of major depressive disorder, generalized anxiety disorder, panic disorder without agoraphobia, and insomnia related to PTSD. While Dr. S.W. reported several diagnoses, the evaluation focused primarily on PTSD and failed to discuss whether the other diagnoses (except insomnia noted to be related to PTSD) incurred or are related to service. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board finds the October 2021 VA examiner's finding of one diagnosis of PTSD related to service probative as it is consistent with the February 2012 VA examination and treatment records reflecting assessments of and treatment for PTSD. Accordingly, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran's has current diagnosis of an acquired psychiatric condition (other than PTSD) which began during service or is otherwise related to an in-service injury, event, or disease. Thus, entitlement to service connection for an acquired psychiatric condition, other than PTSD is not warranted and the claim is denied. 2. Entitlement to service connection for an acquired psychiatric condition for treatment purposes only under 38 U.S.C. § 1702 As entitlement to service connection for a psychiatric disorder has been established, the issue of presumptive eligibility for Chapter 17 benefits for an acquired psychiatric condition under 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). The Veteran will be afforded equal or greater access to VA treatment by virtue of the now-established award of service connection for PTSD. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this specific issue is dismissed. See 38 C.F.R. §§ 19.22, 20.104, 20.903. Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). REASONS FOR REMAND 1. Entitlement to service connection for back injury In September 2020 the Board remanded the issue of entitlement to service connection for back injury for a medical opinion. In April 2021 the VA examiner opined that the Veteran's back injury was less likely than not incurred in or caused by service as his inservice back pain was acute. The examiner noted that the x-ray obtained while on leave revealed subluxation but the x-ray completed when the Veteran returned to base did not show subluxation in the presence of low back pain and no other diagnosis was documented. He also reported that there was no evidence of chronicity of care with the first indication of acute back pain in 2008 with a subsequent laminectomy performed later in 2008 after failing physical therapy with back pain and limited range of motion ever since. In an addendum report the VA examiner again noted the Veteran's inservice injury and diagnosis of a herniated disc in 2008. He explained that subluxation can occur with traumatic injury and resolve with movements, chiropractic care or stretching so it's possible that his subluxation resolved prior to returning to base after leave. He noted that there is a discrepancy as the Veteran had imaging on his spine on leave showing subluxation and his x-ray when he returned did not show subluxation. The examiner stated that he was not able to determine without speculation if the L5 subluxation seen on the x-ray in 1966 had any effect on the subsequent disc herniation and L3-5 laminectomy in 2008. The examiner noted that the record does not include any correlation by a surgeon or specialist correlating the diagnosis of L5 subluxation as causative in development of disc herniation or lumbar stenosis requiring laminectomy of multiple levels L3-L5. However, the examiner also opined that it is less likely than not the claimed condition incurred in or was caused by service as subluxation was acute only and the Veteran reported back pain with no specific trauma, wear and tear. Again, the examiner noted that he received a diagnosis of back strain and did not have chronicity of care for his L5 subluxation with the next complaint of back pain that was documented in 2008 with acute low back pain. For bulging disc, the examiner noted that disc herniation is most often the result of a gradual, aging-related wear and tear called disk degeneration. Most people can't pinpoint the cause of their herniated disk but the second most common cause of disc herniation is trauma and other causes include connective tissue disorders and congenital disorders such as short pedicles. The examiner again opined that it is less likely than not a result of his L5 acute subluxation while in service as he only had acute lumbar pain with no specific trauma. It was wear and tear that eventually was diagnosed as lumbar strain. The Board finds the medical opinions inadequate for adjudication. The examiner provides negative nexus opinions with a rationale that relies on the absence of care after service until 2008. While the amount of time that elapsed since service can be considered, the examiner failed to provide a reasoned medical explanation as to the significance of the length of time between separation and the complaints documented in the post-service medical records. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); See also, Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Furthermore, the examiner stated that he was not able to determine without speculation if the L5 subluxation seen on the x-ray in 1966 had any effect on the subsequent disc herniation and L3-5 laminectomy in 2008 as the record does not include any correlation by a surgeon or specialist. The remand directives instructed the examiner to provide a complete explanation, to include 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(s). The examiner's explanation that the record is void of any correlation by a surgeon or specialist is insufficient, as this is the very question presented and a complete explanation for citing speculation was not provided. Therefore, a remand is necessary to obtain an addendum opinion from a qualified specialist. 2. Entitlement to service connection for bilateral atrophy of the testicles In August 2014 the VA examiner opined that it is less likely than not that bilateral atrophy of the testicles was incurred in or caused by the in-service right inguinal hernia repair as the separation examination as well as subsequent examinations in 1969 and 1978 document normal genitourinary findings. The examiner noted that in 1984, 17 years after miliary discharge, the Veteran was first documented with a history of infertility and testicles that were soft and somewhat small. The examiner concluded that based on the records there is no medical, clinical, or significant research evidence to support that testicle atrophy with sterility was caused by or a result of his abdominal injury in service with subsequent hernia repair, as it is per veteran's report only. In September 2020 the Board remanded for an addendum medical opinion that considered the Veteran's full medical history. Another opinion was obtained in April 2021, which found that infertility was at least as likely as not caused by the claimed inservice injury and that it was less likely than not that the Veteran's vas deferens was removed in service. However, the medical opinion failed to address the issue of bilateral testicle atrophy. Accordingly, the Board finds that there is insufficient evidence of record and a remand is required to obtain a VA medical opinion that specifically addresses atrophy of the testes. The VA has a duty to assist, which includes providing a medical opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The record contains sufficient evidence to trigger the VA's duty to assist by providing a VA medical addressing the etiology of the Veteran's testicle atrophy. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to TDIU prior to December 1, 2015 The Veteran's entitlement to a TDIU prior to December 1, 2015 is inextricably intertwined with the service connection claims on appeal. Therefore, the Board finds that the claim for a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of any back disorder of the Veteran at any time since the claim was filed in April 2009, even if now resolved. A further in person examination may be scheduled if needed to adequately provide the requested opinions. The clinician must opine as to whether any such disorder at least as likely as not: a) Is related to any in-service injury, event, or disease; or b) Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service. If the Veteran's medical history indicates that the diagnosis of any back disorder has changed, the clinician must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the clinician that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. The examiner should address prior VA examinations and reconcile any conflicting medical and lay evidence of record. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current knee condition is not related to service. If the clinician cannot provide an opinion without resorting to mere speculation, the clinician shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall 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(s). 4. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of bilateral atrophy of the testes. An in-person examination may be scheduled if needed to adequately provide the requested opinion. The examiner must opine as to whether atrophy of the testes is at least as likely as not is related to any in-service injury, event, or disease, to include the Veteran's report of injury and/or surgical removal of the left and/or right vas deferens during service. If the Veteran's medical history indicates that the diagnosis of any male reproductive disorder has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran, as a layperson, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall 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(s). 5. Upon completion of the above directives, complete any other necessary development after review of any additionally received records, to include additional VA examinations if warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.