Citation Nr: 21009658 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-46 348 DATE: February 23, 2021 ORDER The appeal for entitlement to service connection for a back disorder is dismissed. The appeal for entitlement to service connection for a left knee disorder is dismissed. The appeal for entitlement to service connection for a right knee disorder is dismissed. The appeal for entitlement to service connection for hair bumps is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT While in remand status, an October 2020 rating decision granted the Veteran’s claims of entitlement to service connection for a back disorder, disorders of the left knee, disorders of the right knee, and pseudofolliculitis barbae (claimed as hair bumps). CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for a back disorder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a back disorder. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. As the benefit sought on appeal with respect to the matter of service connection for a left knee disorder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a left knee disorder. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 3. As the benefit sought on appeal with respect to the matter of service connection for a right knee disorder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a right knee disorder. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 4. As the benefit sought on appeal with respect to the matter of service connection for hair bumps has been granted, there remains no case or controversy as to the issue of entitlement to service connection for hair bumps. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDING AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from September 1994 to July 1998, from November 2002 to October 2004, and from June 2006 to June 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board denied the issue of entitlement to service connection for an acquired psychiatric disorder and remanded the remaining issues on appeal for further development. The Veteran appealed the Board’s July 2019 decision as to the issue of entitlement to service connection for an acquired psychiatric disorder to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) and requested that the Court vacate the portion of the Board’s decision that denied entitlement to service connection for an acquired psychiatric disorder, and to remand the matter for further development. In a July 2020 Order, the Court vacated the Board’s July 2019 decision of entitlement to service connection for an acquired psychiatric disorder, and remanded the matter for further consideration and instructions consistent with the JMPR. As for the remaining issues on appeal, while the matter was in remand status, the RO granted the claims of entitlement to service connection for lumbosacral strain, pseudofolliculitis barbae, left knee instability, left knee strain, right knee instability, and right knee strain in an October 2020 rating decision, resolving the claims of entitlement to service connection for a back disorder, left knee disorder, right knee disorder, and hair bumps. The Board notes that prior to his current representation, the Veteran was represented by the Disabled American Veterans (DAV). While the case was in remand status, the Veteran appointed a new representative in this appeal as indicated above. See July 2020 VA Form 21-22a, Appointment of Individual as Claimant’s Representative. The Board notes further notes that, in a November 19, 2020, correspondence, the Veteran’s representative submitted a request for the record to be left open for 60 days to allow for the submission of additional evidence. The Veteran’s representative was sent correspondence on December 3, 2020, informing him that the 60-day extension had been granted through February 1, 2021. In subsequent correspondence dated January 14, 2021, the Veteran’s representative requested an additional 60 days. While such motion has not been ruled on, there is no prejudice to the Board in proceeding with a review of the Veteran’s case at this time, as the claim of entitlement to service connection for an acquired psychiatric disorder is being remanded; therefore, the Veteran, through his representative, may submit any further evidence for consideration on remand. Dismissal 1. Entitlement to service connection for a back disorder is dismissed. See Argument Below 2. Entitlement to service connection for a left knee disorder is dismissed. See Argument Below 3. Entitlement to service connection for a right knee disorder is dismissed. See Argument Below 4. Entitlement to service connection for hair bumps is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, an October 2020 rating decision granted the Veteran’s claims of entitlement to service connection for lumbosacral strain, pseudofolliculitis barbae, left knee instability, left knee strain, right knee instability, and right knee strain. This action resolved the claims for service connection. As a result, no case or controversy regarding the matters of service connection for a back disorder, left knee disorder, right knee disorder, and hair bumps remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to these matters, and the matters are dismissed. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. The record reflects that the Veteran was afforded a VA psychiatric examination in June 2015. The examiner provided diagnoses of alcohol use disorder in partial remission and other specified depressive disorder. The examiner noted that the Veteran’s symptoms did not meet the diagnosis criteria for posttraumatic stress disorder (PTSD) under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). In a subsequent July 2015 addendum, the examiner opined that the Veteran’s depressive disorder was less likely than not incurred in or caused by the stressors during combat. The examiner explained that the Veteran had minimal symptoms related to the stressors, and therefore, depression was not caused by these stressors. As previously indicated, pursuant to the July 2020 JMPR, the Court vacated the part of the Board’s July 2019 decision which denied entitlement to service connection for an acquired psychiatric disorder. The Court found that the July 2015 VA examiner’s opinion was inadequate because the opinion lacked a “reasoned medical explanation” supporting his conclusion. The Court indicated that the examiner’s conclusion “is not well reasoned because it does not explain why the Veteran’s depressive disorder is less likely than not related to military stressors where the examiner found that the Veteran has ‘minimal symptoms related to the stressors.’” Furthermore, the Board notes that the record reflects conflicting medical evidence as to whether the Veteran has a current diagnosis of PTSD. While the June 2015 VA examiner concluded that the Veteran’s symptoms did not meet the diagnosis criteria for PTSD under the DSM-5 criteria, a May 2020 VA mental health note shows a diagnosis of PTSD. Thus, in light of the Court’s directives, as well as the conflicting medical evidence as regards to a diagnosis of PTSD, the Board finds that a remand is necessary to afford the Veteran with a new VA psychiatric examination to obtain clarification as to the nature of the Veteran’s psychiatric disorders, and to obtain clarification as to the etiology of any such diagnosed acquired psychiatric disorder. The examiner should also provide an opinion reconciling the conflicting evidence regarding the Veteran’s diagnosis of PTSD. The examiner is to provide the Veteran with an examination and thorough interview and take note of the Veteran’s numerous lay statements as to his in-service experiences, stressors, and symptoms. In addition to a thorough report and review of the Veteran’s current symptoms, the examiner is to provide a detailed rationale as to the cause of the Veteran’s psychiatric disorder(s). On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed acquired psychiatric disorder. The Veteran’s claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner should be directed to elicit a complete history from the Veteran. The examiner is asked to identify all current psychiatric disorders. For any psychiatric disorder that is noted in the treatment records, but not found on current examination, the examiner should attempt to reconcile these findings. The examiner must opine whether the Veteran has a current diagnosis of PTSD. If the examiner determines that PTSD is present, then he or she must specify the stressor supporting that diagnosis. With respect to any additional psychiatric disorder present during the period of this claim, state whether it is at least as likely as not that such disorder originated during service or is otherwise etiologically related to service. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.