Citation Nr: 21010626 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 13-21 961 DATE: February 25, 2021 REMANDED 1. Entitlement to service connection for a psychiatric disorder is remanded. 2. Entitlement to service connection for a sleep disorder is remanded. REASONS FOR REMAN.D The Veteran served on active duty from July 2008 to May 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2015 hearing. These issues were previously before the Board in May and October 2015, August 2017 and June 2018, when they were remanded for further development, and denied in a February 2019 Board decision. The Veteran appealed the decision to the Court of Appeals for Veterans Claims. In June 2020, the Court set aside the February 2019 Board decision, and remanded the matters to the Board for readjudication. 1. Entitlement to service connection for a psychiatric disorder is remanded. Remand is required for a new VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The RO obtained a VA medical opinion in October 2018 where the examiner provided a diagnosis of Major Depressive Disorder (MDD), and a negative nexus opinion. The examiner explained that the MDD is a progression from the previous diagnosis of Persistent Depressive Disorder (PDD), and that it clearly and unmistakably existed prior to service due to his previously reported depressive symptoms and low self-esteem as an adolescent, holding a knife to his wrist and contemplating suicide, academic difficulties, frequent absences and eventually dropping out from school, and being prescribed antidepressants as a teenager. The examiner also opined that the MDD was clearly and unmistakably not aggravated during service as the Veteran’s reports of symptoms and problematic behavior during service was consistent with his symptoms and behavior prior to service. The examiner explained that his marital issues began prior to service, and that while his symptoms worsened after he separated from his wife, this was expected given the nature of the psychosocial stressor, and that the Veteran was eventually able to move on with his life. Noting that the Veteran’s mother and brother have a history of depression, the examiner stated that MDD has an etiology with a preponderance of biological loading, and therefore the Veteran has a genetic vulnerability to depression. The June 2018 Board remand instructed the examiner to address the October 2015 Board hearing testimony, the Veteran’s lay statements, and his service treatment records. While the examiner stated that they considered that evidence, they failed to actually address much of the content within this evidence directly. The examiner placed emphasis on the Veteran’s statements that as an adolescent he was once prescribed antidepressants and once contemplated suicide; however, they failed to address the fact that the Veteran asserted during the April 2016 examination that he was only prescribed that medication by the family’s primary care physician at his mother’s insistence, and that he never took the medication or sought any other treatment prior to service. Although submitted after the October 2018 VA medical opinion, in a November 2018 statement, the Veteran explained that as an adolescent he was coping with normal teenage stressors, and that the stress and depression was never as nearly as severe as it was during service and since discharge. He also stated that his difficulties with academics had nothing due with mental health issues, but rather because his goals did not align with going to school, and that he was working a full time job. In a December 2018 statement, the Veteran’s mother asserted that he was always an outgoing and energetic boy, and that he began working at a local amusement park at the age of 14, and quickly worked his way up to a management position. The examiner also placed great emphasis on the fact that the Veteran’s marital problems began prior to service; however, they failed to address the Veteran’s other statements regarding his reported stressors during service. During the October 2015 Board hearing, the Veteran asserted that when he joined the military, he felt homesick, missed his kids, and that he felt a lot of stress from going from a normal life to the constant badgering from drill sergeants. He also stated that he had a difficult time with his fellow soldiers, as they were in very different places in life. Most of them were 18 years old and had just graduated from high school, whereas he was 23 years old, and married with children. In the November 2018 statement, the Veteran asserted that he was treated differently by his superior officer and fellow soldiers, and that when that superior officer left, he became one of the top soldiers in his rotation. The Veteran also asserted that he was not deployed due to his mental health issues, and a fellow soldier whom he was close with was deployed in his place. The Veteran stated that the fellow soldier died on deployment, and he felt responsible for his death. The Veteran maintained that while his marital issues did begin prior to service, the divorce would not have happened if he did not join the military. Again, the examiner opined that the depression was clearly and unmistakably not aggravated by service due to the consistency of the Veteran’s behavior and symptoms prior to and during service. As noted above, prior to service, the Veteran was prescribed antidepressants once, and contemplated suicide once. During service, according to the October 2015 Board hearing testimony, the Veteran was put on suicide watch at least three times, and had his weapon permanently taken away from him. It appears that the examiner is simply stating that because he had depression prior to service, and he had depression during service, then the symptoms were not aggravated. This logic is circular, without actually analyzing the severity of the Veteran’s symptoms and behavior prior to and during service. The Board finds that the examiner failed to provide sufficient rationale explaining how the depression was clearly and unmistakably not aggravated by service. The examiner also stated that the Veteran appears to have been able to move on with his life with regard to other relationships and jobs after his divorce, and that his depressive symptoms are only present because he responds poorly to psychosocial stress. Indeed, according to the April 2016 VA examination, the Veteran has had at least one romantic relationship since separation; however, January 2018 VA treatment records indicate that the Veteran has had constant, daily thoughts of suicide since 2009. The examiner failed to address these records, or provide any further supporting rationale to explain how this suggests that the Veteran’s depressive symptoms were clearly and unmistakably not aggravated by service. Additionally, although the examiner is opining that the Veteran’s symptoms have improved, they also stated that the PDD had progressed to MDD. The Board finds these statements to be contradictory. Accordingly, remand is required for a new VA examination. 2. Entitlement to service connection for a sleep disorder is remanded. Remand is required for a new VA examination for the sleep disorder claim. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr, 21 Vet. App. at 311. The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In the October 2018 VA medical opinion, the examiner explained that the Veteran does not meet the DSM-5 criteria for an additional diagnosis of insomnia, and that the current diagnosis of MDD accounts for his sleep disturbances under criterion A4 of the DSM-5 diagnosis for MDD. However, the examiner failed to address the diagnosis of insomnia from the October 2012 VA medical examination. Additionally, the June 2018 Board remand instructed the examiner to address the Veteran’s October 2015 Board hearing testimony, the Veteran’s lay statements, and the Veteran’s STRs, including a March 2010 note indicating that the Veteran had been experiencing sleep problems since he was a teenager and when he was with his wife. The examiner failed to address any of these records. Accordingly, remand is required for a new VA examination. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his psychological disorders. If possible, please schedule the examination with an examiner other than the examiner who provided the April 2016, and February and October 2018 VA medical opinions. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) First, the examiner must determine all of the Veteran’s diagnosed psychiatric disorders. The examiner must specifically determine if generalized anxiety disorder (GAD), recurrent anxiety disorder NOS, alcohol abuse, adjustment disorder, borderline personality disorder, major depression, and persistent depressive disorder, and major depressive disorder are diagnosed. If not found, the examiner must address the prior diagnoses during the appeal period. The examiner is reminded that the requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. (b) Second, for each diagnosed psychiatric disorder, the examiner must provide an opinion whether it clearly and unmistakably (undebatably) pre-existed the Veteran’s active duty service. (c) Third, for each diagnosed psychiatric disorder that clearly and unmistakably pre-existed service, the examiner must provide an opinion whether the disorder clearly and unmistakably (undebatably) was not aggravated during service. (d) For all other psychiatric disorders that did not meet either (b) or (c), the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active military service. (e) The examiner must address the following: 1) the August 2007 entrance examination where the Veteran denied depression or excessive worry; 2) the February 2010 STR indicating depressed mood but worse since his separation 7 months prior; 3) the November 2010 personnel record indicating suicidal ideation twice in the last year; 4) December 2010 STR indicating that the Veteran had been seeing a psychiatrist since 2010 for depression, anger, and panic attacks; 5) June 2011 PTRs indicating an intentional overdose; 6) May 2012 PTR where the Veteran was diagnosed with MDD and indicates that the Veteran told several people of intent to commit suicide; 7) the October 2012 VA treatment record where the Veteran was told he had adjustment disorder with mixed anxiety and depressed mood; 8) the October 2012, April 2016, February 2018, and October 2018 VA medical opinions; 9) the April 2016 Board hearing testimony; 10) the January 2018 VA treatment record indicating the Veteran had thoughts of suicide daily since 2009; and 11) the November 2018 and December 2018 lay statements. 3. Provide the Veteran with an appropriate examination to determine the etiology of the sleep disorder. If possible, please schedule the examination with an examiner other than the examiner who provided the April 2016, and February and October 2018 VA medical opinions. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is reminded that the requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. (a) First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder had onset in, or is otherwise related to, active military service. (b) The examiner must address the following: 1) the February 2010 STR indicating a history of sleep problems; 2) March 2010 STRs indicating insomnia, and that sleep problems began in teens, and that the Veteran has sleep problems even when not depressed; 3) October 2010 STR indicating the Veteran received a profile to improve his sleep; 4) November 2010 STR with diagnosis of insomnia; 5) April 2011 STRs indicating snoring and restless sleeping; 6) October VA treatment records indicating sleep disturbances; 7) the October 2012 VA examination with a diagnosis of insomnia; 8) the October 2015 Board hearing testimony; 8) the April 2016, February and October 2018 VA medical opinions; and 9) the December 2018 lay statement. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.