Citation Nr: 21010653 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-29 442 DATE: February 25, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and anxiety is granted. REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for involuntary muscle spasms/tremors is remanded. FINDING OF FACT The preponderance of the evidence is in favor of the finding that Veteran’s acquired psychiatric disorder, to include PTSD, anxiety, and depression is related to an in service event. CONCLUSION OF LAW The requirements for establishing service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression have been met. 38 U.S.C. §§ 1101, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1983 to February 1987 and from December 1987 to December 1991. Some of the Veteran’s service treatment records (STRs) and personnel records are not available. Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O’Hare vs. Derwinski, 1 Vet. App. 365 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). While the Veteran initially requested a Board hearing, in a May 2019 letter he withdrew his request for a hearing. VA’s duty to notify was satisfied by letters sent in May 2010 and June 2010. 38 U.S.C. §§ 5102, 5103, 5103A (2018); 38 C.F.R. § 3.159 (2020); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The evidence of record includes the Veteran’s VA treatment records and private medical records and the Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In December 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive VA examinations for his service connection claims. The Veteran received new VA examinations in September 2020. For the Veteran’s acquired psychiatric conditions, the examination was adequate because it was based on a thorough examination, a description of the Veteran’s pertinent medical history, a complete review of the claims file, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). There has been substantial compliance with the remand directives pertaining to the psychiatric disorder claim. See Stegall v. West, 11 Vet. App. 268 (1998). However, as discussed in the Remand portion below, the Board finds the VA nexus opinions for the Veteran’s migraine, hypertension, and muscle spasm disabilities inadequate and therefore there has not been substantial compliance with the remand directives for these claims. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has rephrased the Veteran’s claim of entitlement to service connection for anxiety as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2020); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). The diagnostic criteria set forth in The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, (5th ed. 2013) (DSM- 5) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125 (2020). There is conflicting evidence concerning the Veteran’s PTSD diagnosis. In a May 2013 private opinion, the examiner stated that he could not conclusively state whether the Veteran had PTSD based on his interview. However, the September 2020 VA examiner found that the Veteran met the criteria for PTSD. Additionally, the evidence shows that the Veteran experienced a qualified stressor. He described that his base was under mortar and scud missile attack when he was deployed. The Veteran was on guard duty and hid in a fox hole, where he feared for his life. These combat-related stressors are consistent with the circumstances of his service and therefore his lay statements are sufficient to show that they occurred. Accordingly, the Board finds the issue before the Board is nexus to service. As noted above, the Veteran received a May 2013 private examination. The examiner considered his in-service stressors but did not provide a nexus opinion for any of the Veteran’s psychiatric conditions. Conversely, in a September 2020 VA opinion, the examiner opined that the Veteran’s PTSD was caused by his in service stressors. The examiner noted that the Veteran had no mental health issues prior to service and his PTSD symptoms were caused by his experiences in service. Consequently, the Board finds that the preponderance of the probative evidence is for the claim. The September 2020 VA opinion provided credible, competent evidence that the Veteran has PTSD caused by his in-service stressors. The Board acknowledges the May 2013 opinion but notes the lack of a nexus opinion. Thus, the preponderance of the probative evidence is for the Veteran’s claim, service connection for an acquired psychiatric disorder is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran received VA examinations for his migraine, hypertension, and muscle spasm disabilities in September 2020. However, the rationales provided by the VA examiners were inadequate. As noted in the December 2019 remand, a July 2010 VA memo noted that some of the Veteran’s service treatment and personnel records were unavailable for review. Nevertheless, in forming a nexus opinion the examiners did not address the Veteran’s lay statements about his conditions during service and based their opinion on the lack of in service treatment, despite the VA memo noting the unavailability some of the service records. Additionally, in a June 2010 statement, the Veteran asserted that hypertension, headaches, and spasms were related to his anxiety. Opinions regarding secondary service connection are needed. New nexus opinions are necessary to fully adjudicate the Veteran’s remaining service connection claims. The matters are REMANDED for the following action: 1. Return the Veteran’s claims file to the examiner who conducted the September 2020 headaches VA examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disability began during active service or is related to an incident of service. b. Whether it is at least as likely as not that the Veteran’s headache disability was proximately due to or the result of his service connected acquired psychiatric disorder. c. Whether it is at least as likely as not that the Veteran’s headache disability was aggravated beyond its natural progression by his service-connected acquired psychiatric disorder. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s June 2010 lay statement that his headaches started in 1990 while serving in Kuwait and June 2010 lay statement that his headaches are related to his anxiety. For the purposes of this remand and providing a medical opinion, the examiner should assume that the Veteran’s assertions are true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Return the Veteran’s claims file to the examiner who conducted the September 2020 hypertension VA examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a. Whether it is at least as likely as not that the Veteran’s hypertension began during active service, is related to an incident of service, or began within 1 year of separation from service. b. Whether it is at least as likely as not that the Veteran’s hypertension was proximately due to or the result of his service connected acquired psychiatric disorder. c. Whether it is at least as likely as not that the Veteran’s hypertension was aggravated beyond its natural progression by his service-connected acquired psychiatric disorder. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s lay statements and his wife’s lay statement that his hypertension started in service and the Veteran’s June 2010 statement that it is related to his anxiety. For the purposes of this remand and providing a medical opinion, the examiner should assume that the Veteran’s assertions are true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran’s claims file to the examiner who conducted the September 2020 muscle spasms VA examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a. Whether it is at least as likely as not that the Veteran’s muscle spasms began during active service or are related to an incident of service. b. Whether it is at least as likely as not that the Veteran’s muscle spam disability was proximately due to or the result of his service connected acquired psychiatric disorder. c. Whether it is at least as likely as not that the Veteran’s muscle spasm disability was aggravated beyond its natural progression by his service-connected acquired psychiatric disorder. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s June 2010 lay statements that his muscle spasms started in service and are related to his anxiety. For the purposes of this remand and providing a medical opinion, the examiner should assume that the Veteran’s assertions are true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.