Citation Nr: 21005481 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-38 936A DATE: February 1, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1977 to January 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision. A Board hearing was held in March 2019. A transcript is of record. In May 2019, the Board remanded this issue for further development, and the case has been returned for appellate consideration. The Board also remanded the issues of entitlement to service connection for conditions of the right shoulder, left shoulder, and neck. In an October 2020 rating decision, service connection was granted effective September 16, 2013, for: right shoulder strain, rotator cuff tendonitis and bursitis, evaluated as 20 percent disabling; left shoulder strain, rotator cuff tendonitis and bursitis, evaluated as 20 percent disabling; and degenerative arthritis of the cervical spine (claimed as neck condition), evaluated as 20 percent disabling. As this represents a full grant of the benefits sought, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluations or effective date assigned. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.52 (formerly 20.302), 20.1103. Pursuant to the Board’s May 2019 remand, in October 2020, the Veteran was afforded a VA examination for PTSD, during which the examiner opined that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) criteria. The examiner found that the Veteran suffers from adjustment disorder with depressed mood, which was consistent with his VA medical records. It was opined that the Veteran’s psychiatric condition was less likely than not related to service, explaining that the Veteran’s service treatment records did not support the presence of mental health issues during service and the Veteran “did not report any to the examiner.” It was also noted that the record “as a whole does not show a nexus from the service time to his more recent treatment at the VA, the large gap not allowing a continuity to be established.” Once VA provides an examination, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds this medical opinion is inadequate for several reasons. First, the examiner essentially based the opinion solely on the lack of medical evidence of a mental health condition in the Veteran’s service treatment records. The lack of contemporaneous service treatment records documenting a complaint or diagnosis of a condition during active service, alone, is an insufficient rationale for a negative opinion. See e.g., Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) (addressing service connection for hearing loss). Second, the examiner failed to consider the relevant evidence gathered during the examination and to reconcile it with the Veteran’s deterioration of performance in a short period of time as established by his military personnel record. During the examination, the Veteran reported that during service he had conflicts with a particular sergeant, whom he believed was highly prejudiced against him, and, due to sensitivity to being treated poorly, he took to using drugs. The examiner noted that the Veteran presented as “highly verbal and upset at his treatment” in service. Records show that within two months of enlistment the Veteran was promoted during basic training at Fort Jackson, and, thereafter, he completed basic Airborne training at Fort Benning. Next, he was assigned to Fort Bragg, and in October 1977, it was recorded that he engaged in a physical altercation with his roommate over possession of the Veteran’s Bible, which he read nightly. Within a two-week period in November 1977, the Veteran was counseled three times: twice for lack of cooperation and once for tardiness, failure to properly perform. The report of the first counseling session shows that he was informed that he had “to learn to get along with other members of unit especially his superiors” and that administrative discharge was recommended. Memoranda on his expeditious discharge record that he had not been punished under Article 15. (The Veteran, however, has reported to VA medical providers and at his hearing that he had five Article 15s.) It was opined that the Veteran lacked motivation and had been “unable to adjust to Army life. His enlistment was probably a mistake.” This evidence was not addressed and reconciled in the examiner’s medical opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Third, the examiner failed to address the Veteran’s March 2019 hearing testimony concerning his in-service experiences as well as two November 2013 buddy statements reporting the Veteran’s post-service psychiatric symptoms. During his hearing, the Veteran reported that while at Fort Bragg he had constant confrontations with Sgt. S., for whom he “couldn’t do nothing right.” The Veteran reported: “He used to get in my face and talk to me so damn bad.” He also reported that the sergeant used to have other service members, including the Veteran’s roommate, fight with him. The Veteran stated: “I’m not lying, I wanted to kill that man.” He stated that he reported several times that he believed the sergeant was racist toward him, and he was told that the sergeant was just doing his job. He endorsed that the sergeant never assaulted him but stated that the sergeant got close enough into his face that he was hit with spit. He stated that he started drinking as a result. The VA examiner failed to address this relevant lay evidence and to reconcile it with the other relevant evidence of record. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence). Fourth, the VA examiner failed to consider all the reported stressor events of record. In a November 2013 statement in support of claim for PTSD, the Veteran reported as a stressful event particulars surrounding his last night jump, during which he and several others were injured,. He stated that he began to use marijuana to numb pain and that he still had nightmares about the jump. (See also February 2014 Statement in Support of Claim.) In a November 2013 letter, the Veteran’s wife stated that, because the Veteran’s “nightmares of his last jump in Airborne” were so bad, she could not sleep in the same room with him. During his hearing, the Veteran stated that it was during that last night jump that he “crashed and burn[ed].” He stated that he started smoking marijuana in service to treat physical pain from injuries. VA medical records show that, starting when the Veteran first sought mental health treatment in May 2013 and continuing throughout, he routinely reported the inability to sleep due to recurrent nightmares related to the parachuting accident and the conduct of his sergeant. The Veteran’s wife reported to providers their nighttime problems due to his nightmares. Providers also noted his fixation of attributing his problems to his in-service experiences. During the VA examination, the Veteran reported having trouble sleeping and nightmares, and the examiner indicated that his symptomatology included chronic sleep impairment but failed to record the substance of the nightmares and his chronic history of them. This relevant evidence was not addressed in the negative medical opinion. Last, a March 2019 letter shows that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA) based in part upon “affective disorders.” It does not appear that all the relevant underlying medical records supporting that award have been associated with the claims file such that the VA examiner may not have had all the available relevant evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Consequently, on remand, the Agency of Original Jurisdiction (AOJ) should obtain from the SSA the available medical records and adjudicative materials supporting this award. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). On remand, after the above noted development is complete, a new VA examination is required to determine the nature and etiology of the Veteran’s acquired psychiatric disability, taking into account the record evidence and accepted medical principles. 38 C.F.R. § 3.159(c)(4). This matter is REMANDED for the following actions: 1. Attempts must be made to obtain a copy of any SSA decision awarding disability benefits to the Veteran pertaining to an acquired psychiatric disability, copies of all treatment (medical and mental) records upon which any such SSA disability benefit award was based, and a copy of any medical records pertaining to the disability associated with any subsequent disability determinations by the SSA. All attempts to secure this evidence must be documented in the claims file by the AOJ. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ was unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran must be given an opportunity to respond. 2. After completion of the above development, the Veteran should be afforded a VA examination to determine the nature an etiology of any current acquired psychiatric disorder that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The record and a copy of this Remand in its entirety (not just the directives) must be provided to the examiner in conjunction with the examination, and the examiner is asked to review the claims file as well as indicate on the report that such review was performed. The examiner must obtain a full history from the Veteran, which should be recorded in the examination report. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology and the circumstances surrounding the onset and exacerbation of symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is asked to address the following: (a) For each diagnosis identified other than PTSD, the examiner should discuss whether it is at least as likely as not that the disorder manifested in service or is otherwise related to the Veteran’s military service, including events during Airborne training and conflicts with others that led to his administrative discharge. (b) The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any in-service stressor. The examiner is reminded that lack of contemporaneous service treatment records documenting complaints related to a mental health condition during active service, alone, is an insufficient rationale for a negative opinion. Furthermore, all relevant lay evidence of record must be addressed. In rendering these opinions, the examiner must discuss the highlighted evidence identified above. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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. 3. Readjudicate the claim. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, Associate 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.