Citation Nr: 21005583 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-12 273 DATE: February 2, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder and generalized anxiety disorder (GAD), is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to June 1995. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and March 2020, the Board remanded the Veteran’s claim. Although the Veteran submitted a claim for dysthymic disorder and generalized anxiety disorder (GAD), the Board has recharacterized the issue as a claim for an acquired psychiatric disability, generally. The Veteran cannot be required to know whether the symptoms he is claiming service connection for are related to dysthymic disorder or GAD, or another psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Additionally, the Board notes that the Board remanded the claim in part to allow the Veteran to submit private treatment records or authorization for release of such records. The RO sent letters, dated in March 2020 and August 2020 letter, to the Veteran (with a copy to his representative) requesting authorization to obtain all outstanding private treatment records. No additional records have been received, and the Veteran did not complete an authorization to allow VA to obtain any outstanding records. The record also reflects that VA made attempts to develop the Veteran’s claimed in-service stressors, including reaching out to the Veteran for more detailed information on his claimed in-service stressors. See Subsequent Development Letter (August 2020). The Veteran, however, did not respond. VA’s duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder and GAD is remanded. The Veteran, and his representative, contends that his acquired psychiatric disorder is related to his active service. Specifically, at his March 2017 private evaluation, the Veteran reported that his anxiety began in 5-Mash unit in Panama during an invasion, when he saw wounded soldiers. See Medical Treatment Record - Non-Government Facility (April 2017). The Veteran also reported that his acquired psychiatric disorder stems from sleep issues beginning early on in the service. See C&P Exam (May 2020). The Veteran stated that he had some issues with anxiety after the service when he started his first two jobs, and that his time in Panama was stressful because there were bombs going off in the middle of the night. Id. A private evaluation includes the Veteran’s reports of witnessing fellow soldiers getting shot and his best friend being killed during a head-on collision during service. See Medical Treatment Record - Non-Government Facility (August 2020). In support of his claim, the Veteran directs the Board to an August 2020 private medical opinion reflecting a diagnosis of unspecified depressive disorder that was incurred in service. See Medical Treatment Record - Non-Government Facility (August 2020). The Board finds this conclusory medical opinion to be inadequate to support the Veteran’s claim. In determining the adequacy of a medical examination or opinion, an examination or opinion is considered adequate, “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘“evaluation of the claimed disability will be a fully informed one.’“ Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991))). Therefore, when a medical examination or opinion is provided, the clinician must support conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Id. at 124-25. Here, the examiner appears to have relied almost entirely on the reported history of the Veteran, and does not reflect consideration relevant records (e.g. a September 1987 service periodic examination report showing normal clinical evaluation of the psychiatric system; a December 1994 service treatment record noting no mental illness). A bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). The opinion, in this case, makes no reference to the Veteran’s relevant service or post-service medical or lay records. Although the claims file is not a “magical or talismanic set of documents,” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008), it provides critical pieces of information that can lend credence to the opinion. Id. at 304. Moreover, the opinion is not definitive and supported by detailed rationale when weighed against the negative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this regard, the opinion is based on the Veteran’s explanation of his sleep difficulties originating from Korea and the Veteran reportedly having “justified how his current mental health problems were incurred in service.” The opinion concludes that the evidence in the record indicates that it is at least as likely as not hat the Veteran’s unspecified depressive disorder was incurred in service without providing what evidence beyond the Veteran’s reports was considered. In developing this claim, VA obtained a VA medical examination, dated May 2020, with an August 2020 addendum. Once VA provides an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In general, an adequate medical opinion must support its conclusion with an analysis that can be weighed against contrary opinions and be based upon prior medical history and examinations. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). VA obtained a May 2020 VA examination and then obtained a July 2020 addendum opinion. The opinion is inadequate. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must be “accurate and fully descriptive,” 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran’s prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez, 22 Vet. App. at 304 (“most of the probative value of a medical opinion comes from its reasoning”). An adequate medical examination report or opinion must also “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was “informed of sufficient facts upon which to base an opinion relevant to the problem at hand.” Nieves-Rodriguez, 22 Vet. App. at 303. Here, as explained below, the 2020 VA medical opinion (VAMO) is inadequate to decide the appeal. First, the VAMO, while acknowledging that a March 2017 private Mental Residual Functional Capacity Assessment that included diagnoses for dysthymia and GAD, and noting that insomnia disorder was recently diagnosed on the May 2020 VA examination, it did not address whether any mental disorder diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DMS-V), at any time during or approximate to the filing of the claim, is at least as likely as not due to or the result of in-service injury or disease, to include the events reported by the Veteran. Second, the VAMO does not reflect any meaningful consideration of the Veteran’s lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). In this regard, it is noted that the Veteran has reported a history of anxiety after the service when he started his first two jobs, and that his time in Panama was stressful because there were bombs going off in the middle of the night. Although the opinion attributes the reported symptoms to post-service circumstances, including the Veteran losing his son and living in Goldsboro, the opinion does not explain fully why these circumstances are dispositive of the cause of the Veteran’s symptoms. Third, the VAMO possesses little to no rationale for the negative conclusion reached. For instance, the May 2020 VA examination provided a diagnosis of insomnia disorder, but provided no etiology for this diagnosis. Moreover, although the opinion noted the Veteran’s reports of trouble initiating sleep in service and anxiety after service, as well as feeling depressed in 1987 after his father passed, the relevance of this history in supporting negative conclusion is not clear, especially given that the Veteran served until 1995. An opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, in view of the record and the Veteran’s statements, the Board finds that a new examination is required. Barr, 21 Vet. App. at 311. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of each acquired psychiatric disorder shown during or approximate to the appeal period (i.e. since roughly April 2017), to include insomnia, unspecified depressive disorder and GAD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. As to each disorder diagnosed in accordance with the DSM-V, opine on whether it, at least as likely as not, (1) had its onset in service or (2) is otherwise related to an in-service injury, event, or disease. In doing so, indicate whether the shown diagnoses for unspecified depressive disorder and GAD are in accordance with the DSM-V. Consider the March 2017 Mental Residual Functional Capacity Assessment and an August 2020 private medical opinion. Explain. The opinion should reflect, at a minimum, (1) a discussion the Veteran's documented relevant history and assertions; and (2) 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). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): The Veteran is competent to report his symptoms and their onset, but the examiner may reject history if sound reasons are given (e.g. his report is incongruous with documented medical history or clinical evaluation, etc.). Explain fully. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions 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. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.