Citation Nr: 21006353 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-47 530 DATE: February 3, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder variously diagnosed, to include post-traumatic stress disorder (PTSD), is remanded. Entitlement to service connection for ulcers, to include as secondary to PTSD, is remanded. Entitlement to an increased disability evaluation in excess of 10 percent for service-connected lumbosacral-spine disorder is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from May 1994 to May 1999. In January 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disorder variously diagnosed, to include PTSD. The Board denied this claim in its April 2019 decision. Upon appeal to the United States Court of Appeals for Veterans Claims (the Court), the Court in February 2020 vacated the denial and remanded the claim to the Board for action consistent with the Joint Motion for Partial Remand (JMPR) agreed to and submitted by the parties. The JMPR asserts the Board failed to address the adequacy of the October 2016 VA negative nexus opinion. The rationale for that opinion addressed three psychiatric disorders, each of which the VA examiner stated pre-existed active service. As the Board acknowledged the Veteran’s June 1993 enlistment examination showed no disorders relating to “psychiatric’ or depression, the parties to the JMPR agreed the Board did not analyze the presumption of soundness or explain its reasons why relying on the rationale without that analysis. Moreover, the record contains a July 2016 private treatment “Mental Status Examination” of the Veteran by Dr. J.A., in which, after a thorough review of the record and interview of the Veteran, he concluded that the Veteran’s “Borderline Personality Disorder,” with which she has been consistently diagnosed, is not a constitutional or developmental disease, but rather an acquired personality disorder, not developmental in nature, but acquired during active service. He opined that the Veteran’s multiple mental disorders began in active service. Because Dr. J.A.’s conclusions and opinion present problematic issues as they pertain to VA regulations and because the parties to the JMPR agree that the further issue of the presumption of soundness must be addressed by the Board, the Board has concluded that a VA examination of the Veteran is necessary for specific findings to identify those psychiatric disorders which did or did not pre-exist active service and an opinion as to service connection of those disorders. Therefore, remand is necessary. 2. Entitlement to service connection for ulcers, to include as secondary to PTSD. At a personal hearing before the Board in January 2019, the Veteran withdrew the issue of service connection for ulcers, to include as secondary to PTSD. The Board’s April 2019 decision dismissed that appeal. In February 2020, the Court vacated the dismissal and remanded the claim to the Board for action consistent with the JMPR, which noted from the record the Veteran appeared pro se at the January 2019 Board hearing and discussed withdrawing the above claim during the pre-hearing conference. However, the JMPR asserts the Board failed to explain adequately why it could presume that the Veteran understood the consequences of her verbal decision to withdraw her claims, particularly as she claims to suffer from a psychiatric disorder and was appearing pro se before the Board. Therefore, the JMPR’s admonition that the Board must be certain that a veteran possibly with a psychiatric disorder and appearing before the Board without a representative understands the effects of a withdrawal of an appeal, the Board now proceeds on the assumption that the Veteran in fact was not fully aware of the consequences of her decision to withdraw her claim and wishes to continue her appeal of this claim. However, as the issue of service connection for ulcers, to include as secondary to PTSD, presents the possibility of service connection on the basis of the effects of one of the Veteran’s claimed psychiatric disorders, the claim for ulcers is inextricably intertwined with and dependent on the outcome of the claim for service connection for acquired psychiatric disorder, the resolution of the issues of which, discussed above, is first required. Consequently, the Board defers appellate review of this claim at this time and it is remanded. 3. Entitlement to an increased disability evaluation in excess of 10 percent for service-connected lumbosacral-spine disorder. At the pre-hearing conference in January 2019, the Veteran also withdrew this claim and the Board’s April 2019 decision therefore dismissed this appeal as well. However, as with the claim for service connection for ulcers, the parties to the JMPR agree the Veteran may not have grasped the consequences of her decision to withdraw this claim. As such. the Board concludes for this claim also that the Veteran was not fully aware of the impact of her decision and wishes to continue her appeal. However, the record shows the Veteran underwent three VA examinations for thoracolumbar spine. The January 2016 and October 2016 examinations are inadequate for VA rating purposes, as they do not include findings pertaining to active and passive motion and in weight-bearing and non-weight-bearing maneuvers, consistent with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016), nor do they provide findings, estimated or otherwise, for range of motion during repeated use over time or during flare-ups, as required under Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The October 2019 examination, although it includes Correia findings, does not provide Sharp findings. As the examinations are inadequate and there is therefore insufficient competent medical evidence for VA to make a decision on this claim, remand is necessary for a new VA examination with complete findings. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran for information pertaining to any current treatment for (1) acquired psychiatric disorder variously diagnosed, to include PTSD, (2) stomach ulcers and (3) lumbosacral-spine disorder at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for examinations by VA examiners with appropriate specialties for psychiatric disorders and lumbosacral-spine disorders. The complete electronic claims file must be made available to the examiners in conjunction with this review. The examiners should detail all findings. 3. The examiner for psychiatric disorders is first requested to identify each of the Veteran’s psychiatric disorders which DID OR DID NOT PRE-EXIST active service. The examiner is next requested to render an opinion addressing the following: Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that an acquired psychiatric disorder(s) variously diagnosed, to include PTSD, which DOES NOT PRE-EXIST active service, is incurred or caused by an event, injury or illness during active service. The opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner’s attention is directed to the July 2016 “Mental Status Examination” of the Veteran by Dr. J.A., found in the file as “Correspondence,” at the date, August 1, 2016 The examiner is specifically requested to discuss and comment on Dr. J.A.’s conclusions as to the Veteran’s “Borderline Personality Disorder” specifically and to his conclusions and opinion regarding the etiology and causes of the Veteran’s multiple mental disorders. The examiner is also asked to identify any psychiatric disorder which clearly and unmistakably PRE-EXISTED service, and opine whether, if an acquired disorder, there was clearly and unmistakably increase in severity beyond natural process during service. The examiner is requested to comment on any other relevant opinions in the record and to acknowledge, address, consider, and discuss all lay statements of the Veteran, most particularly, her testimony at the January 2019 Board hearing, as well as the Veteran’s reports to treatment providers, as they appear throughout the record, and any lay evidence of other persons, to include the Veteran’s husband, C.T.K., as it pertains to a psychiatric disorder. The Board urges the examiner to note that opinions rendered without addressing and discussing the lay evidence of the Veteran and other persons will be deemed insufficient for the purposes of VA adjudication. 4. The examiner for lumbosacral-spine disorder is requested to provide findings and diagnoses as to the nature, extent and current severity of service-connected lumbosacral-spine disorder. The examiner is requested to make findings showing testing for pain in active and passive motion and in weight-bearing and non-weight-bearing maneuvers. If the foregoing testing is impracticable, induces discomfort or pain or is medically inappropriate, the examiner should provide an explanation as to why. The examiner is specifically requested to produce findings reflecting the extent of impairment of function due to repetitive use over time and due to flare-ups. If it is found that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during a flare-up, it will be insufficient for VA adjudication purposes for the examiner to fail to make any findings on the basis that to do so would be mere speculation or “there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions” or similar statements. Even if flare-ups or pain are neither reported by the Veteran nor are exhibited during the examination, once again, it will be insufficient for the examiner to make entries such as “not applicable,” “would be mere speculation” or similar statements or fail make any findings whatsoever. The examiner must elicit from the Veteran details as to the actual effects, or what might be the effects, on function from repeated use over time or from flare-ups when pain, weakness, fatigability, or incoordination significantly limit functional ability. After doing so, regardless of what information the Veteran provides, the examiner is requested for VA rating purposes to estimate in terms of actual degrees the loss of range of motion and function, using his or her professional medical training, knowledge and experience. Any opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to findings on examination, to discussion of clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is further requested to comment on all relevant opinions in the record, as well as to acknowledge, address, consider, and discuss all lay statements of the Veteran, most particularly to include her January 2019 Board hearing testimony, as well as her reports to treatment providers as they appear throughout the record, and any lay evidence of other persons, as it pertains to lumbosacral spine disorder. 5. After completing the above development and any other indicated development, readjudicate the claims. If the benefits sought are not granted, provide the Veteran and her representative with a Supplemental Statement of the Case and allow an appropriate opportunity to respond before returning the case to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.