Citation Nr: 21011028 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-53 438 DATE: February 26, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder to include anxiety, posttraumatic stress disorder (PTSD), depression, and adjustment disorder, to include as secondary to his service-connected disabilities. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include anxiety, posttraumatic stress disorder (PTSD), depression, and adjustment disorder, to include as secondary to his service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served in the Army from July 1981 to July 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018. In that November 2018 decision, the Board remanded the Veteran’s claim for the purpose of obtaining a VA medical examination and medical opinion regarding the nature and etiology of this Veteran’s acquired psychiatric disability. Notably, in the November 2018 decision, because of the evidence of record, the Board recharacterized the Veteran’s PTSD claim as a claim of entitlement to an acquired psychiatric disorder including his various diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) As will be discussed below, while a VA medical examination and medical opinion was obtained, the Board finds that further development of the record is required specifically for the purpose of obtaining an Addendum medical opinion to fully address the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder on a secondary basis. This matter has been advanced on the Board's docket. 38 U.S.C. § 7107 (a)(2) (West 2014); 38 C.F.R. § 20.900. Entitlement to service connection for an acquired psychiatric disorder to include anxiety, posttraumatic stress disorder (PTSD), depression, and adjustment disorder, to include as secondary his service-connected disabilities. [I The Veteran asserts that he has an acquired psychiatric disorder due to his to military service, particularly related to his time spent in Kuwait in support of Dessert Storm. The Veteran also contends that his acquired psychiatric disorder is aggravated by his service-connected disabilities, including his back condition. See August 24, 2016 VA Form 21-428, Statement in Support of Claim; See also, February 16, 2021 Appellant Brief, pgs. 4-7. Pursuant to the Board’s November 2018 remand directives, the Veteran was afforded an October 2019 VA examination and medical opinion to determine the etiology of his acquired psychiatric disorder. The examiner diagnosed the Veteran with Adjustment Disorder with Mixed Anxiety and Depressed Mood. The Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. See October 31, 2019 Initial Post Traumatic Stress Disorder examination, pg. 1. Addressing the Veteran’s claim on a direct service basis, the examiner rendered a negative nexus opinion to military service. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner reasoned that the Veteran’s current diagnosis (Adjustment Disorder with Mixed Anxiety and Depressed Mood) meets DSM-5 criteria, but there is no evidence that it is related to the Veteran's military service. There is no report of mental health issues during the Veteran's service time and no consistent report of ongoing mental health problems since military service. Therefore, there is no nexus between military service and current symptoms. As noted above, the Veteran denied all mental health complaints, to include anxiety, depression, and sleep disturbance, during his March 15, 2011 retirement exam. The Veteran did not make any mental health complaints or seek mental health treatment until 2016, approximately 15 years following his retirement from the Army. See October 31, 2019 Behavioral Health Medical Opinion, pg. 2. Addressing secondary service connection, the examiner rendered a negative nexus opinion. The examiner reasoned, in pertinent part that that objective evidence and the Veteran’s self-report are not consistent with the presence of a mental health condition incurred during service, secondary to service-connected condition, or aggravated beyond its natural progression by a service-connected condition. The examiner also explained that while the Veteran noted some physical limitations in the work setting and while completing certain household tasks due to his back condition, he did not endorse the presence of depressive and/or anxiety symptoms secondary to or permanently aggravated by his back condition or any other service-connection condition. See October 31, 2019 Behavioral Health Medical Opinion, pg. 3. In this regard, the Board notes that the proper standard for determining secondary service connection is whether there is any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. This can include increases in severity that are not permanent. 38 C.F.R. § 3.310(b) (2017), Ward v. Wilkie, Nos. 16-2157, 17-1204, 2019 U.S. App. Vet. Claims LEXIS 994 (Vet. App. June 14, 2019). Additionally, Board notes that it is not clear whether the examiner considered lay statements (evidence) submitted in April 2019 on behalf of the Veteran regarding the effect his service-connected disabilities have had on his mental state. See April 10, 2019 lay statement re: back spasms. Additionally, the Board observes that the Veteran submitted an additional etiological opinion from a treating psychiatrist which suggests that the Veteran’s service-connected disabilities aggravated his acquired psychiatric disorder. See December 3, 2018 Private Nexus Opinion, (M.K.N., DO, MS). Therefore, it is not clear whether the examiner considered all of the pertinent lay and medical evidence of record before formulating an opinion with regards to Veteran’s claim for service connection on a secondary basis. Hence, the Board finds that an addendum medical opinion that takes into consideration all of the pertinent lay and medical evidence of record and applies the correct legal standard regarding aggravation is warranted. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private records relevant to his acquired psychiatric disability claim (specifically records related to any treatment or follow-up with Dr. M.K.N., DO, MS). After obtaining any necessary authorization from the Veteran, all outstanding records, including any outstanding VA treatment records, should be obtained. 2. After completing any additional development deemed necessary, return the claims file to the October 31, 2019 examiner (or, if unavailable, to another VA medical professional who has reviewed the file). The need for another examination (or Video tele-health interview, if an in-person examination is not feasible) is left to the discretion of the medical professional offering the addendum medical opinion. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. 3. Next, the examiner should state whether it is at least as likely as not that the Veteran has an acquired psychiatric disorder that is either caused by or is aggravated by his service-connected disabilities, to include his back disability. In this regard, the examiner should note that a rationale for both causation and aggravation is required and that a permanent worsening of the claimed acquired psychiatric disorder is not required (compensation may be due for an incremental increase). *For purposes of this examination, the examiner is requested to review and specifically comment on the Lay statement submitted by the Veteran’s spouse re: back spasms. See April 10, 2019 Lay Statement, Receipt Date, April 11, 2019. *The examiner is also requested to review and specifically comment on the December 2018 etiology opinion from Dr. M.K.N. (D.O., MS), re: psychiatric condition, exacerbated by back pain, foot pain, lower extremity peripheral neuropathy (service-connected disabilities). See December 3, 2018 Medical Treatment Record, Receipt date July 9, 2020. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Ensure that the Addendum Opinion is adequate. If it is deficient in any manner, return it to the examiner as inadequate. Then after conducting any other development deemed necessary, readjudicate the Veteran’s claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.