Citation Nr: 21013200 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-33 627 DATE: March 9, 2021 REMANDED Service connection for an acquired psychiatric disorder is remanded. Service connection for dissociative amnesia is remanded. Service connection for low back condition is remanded. Service connection for left leg condition is remanded. Service connection for right leg condition is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Marine Corps from September 1993 to September 1997. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. 1. Service connection for an acquired psychiatric disorder is remanded. 2. Service connection for dissociative amnesia is remanded. The Board notes that a remand is warranted to obtain a new examination and missing treatment records. In September 2014, the Veteran underwent a VA examination. The examiner who performed the examination diagnosed the Veteran with maladaptive personality traits, persistent depressive disorder, and resolved dissociative amnesia; which the examiner found to be less likely than not incurred in or caused by the Veteran’s service. The examiner noted discrepancies between the Veteran’s self-report of his homelife and documentation “depicting a chaotic upbringing.” The examiner also found that individuals with maladaptive personality traits tended to exhibit “creation of false memories.” In contrast, the Veteran submitted a private examination report dated in December 2020 that diagnosed the Veteran with posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and dissociative amnesia. The private examiner opined that all three were related to an incident during the Veteran’s service in which he stated that he witnessed the death of a child while stationed in Haiti. The Board finds a new VA examination is warranted to clarify some points of ambiguity between these two examinations and the vast disparity between the diagnoses rendered and nexus opinions therein. The VA examiner found the Veteran to be unreliable, creating “false memories.” Although the Board has no reason to question the VA examiner’s methodology to test feigned the Veteran’s history, it is unclear whether the discrepancies in the Veteran’s self-report of his history, in and of itself, a symptom of the Veteran’s psychiatric conditions and history of amnesia. The private examiner, on the other hand, did not discuss the prior VA examiner’s findings that the Veteran created “false memories” or that he had maladaptive personality traits. This is particularly relevant since the described Haiti incident has never been objective confirmed, another point the private examiner never addressed or reconciled. Additionally, the private examiner further found that the Veteran’s inservice psychiatric hospitalization bolstered the evidence that Veteran’s psychiatric disabilities began in service. However, the Board notes that June 1997 service treatment records (STRs) reflect that although the Veteran had been diagnosed with dissociative amnesia, he was found to be oriented, alert, and lucid; and also recommended to return to full duty. An adequate medical opinion must be based upon a consideration of the Veteran’s prior medical history and must describe the Veteran’s condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In light of the complexities of this case and the vast disparity between the VA examiner’s conclusions compared to the private examiner’s conclusions, a new VA examination is warranted to reconcile the Veteran’s diagnoses and likely etiology. Additionally, the Board finds a remand is warranted to obtain missing treatment records. The Veteran’s June 1997 STRs reflect that prior to receiving psychiatric treatment at Camp LeJeune, the Veteran was first seen at a local hospital. In a December 2020 statement, the Veteran wrote that in 2009 he began seeking psychiatric treatment. Those records, if any, have not been associated with the Veteran’s file. Because the clinical records of the treatment, if obtained, could bear on the outcome of the appellant’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 3. Service connection for low back condition is remanded. 4. Service connection for left leg condition is remanded. 5. Service connection for right leg condition is remanded. The Veteran contends he has low back and bilateral leg conditions related to in-service heat exhaustion and his general job duties as a postal clerk during service. His service treatment records confirm treatment for heat exhaustion, but do not show any complaints, treatment, or diagnoses related to the back or bilateral legs specifically. After service, the Veteran indicated that he was experiencing chronic pain in his lower back and legs. See July 2013 Statement. While the Veteran was diagnosed with low back pain and “minimal [degenerative joint disease at] L4/5, L5/S1,” the medical evidence does not reflect that the Veteran has received a diagnosis for his leg pain. See CAPRI February 2014. The Board is cognizant of the holding in Saunders v. Wilkie which stated that where pain causes functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Here, the Veteran’s July 2013 VA treatment records reflect that the Veteran did not jog anymore due to knee pain. See February 2014 CAPRI. Whether the Veteran’s inability to “jog anymore” is equivalent to functional impairment of earning capacity is unclear, but the Veteran has also never been afforded a VA examination on the matter. Indeed, the Board notes that the Veteran has not been afforded a VA examination with respect to his current claims for service connection for a low back condition, left leg condition, or right leg condition. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran’s VA treatment records reflect that he has been seen for complaints of back pain and bilateral knee pain; the Veteran has asserted that these conditions began in service; and has provided lay evidence that these conditions have continued since service; however, there is insufficient evidence of record to decide the claim. See February 2014 CAPRI and July 2013 Statement. Consequently, remand for an examination and etiology opinion is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records 2. Ask the Veteran to provide a release for relevant records of treatment from any private practitioners or, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. Specifically, hospital treatment records and psychiatric treatment records from 1997 and 2009, respectively, should be sought. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran should be notified. 3. After steps 1 and 2 are complete and records are obtained to the extent available, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any found acquired psychiatric condition, to include, but not limited to posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and a psychiatric disorder - The examiner must opine whether the psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other psychiatric disorders are diagnosed other than PTSD, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s June 1997 STRs which reflect that he was hospitalized and diagnosed with amnesia; March 2014 statement in which he attributes his psychiatric disabilities to witnessing the death of a young boy and seeing daily violence while stationed in Haiti. The examiner is also asked to reconcile the findings within a September 2014 VA examination report in which it was noted that that individuals with maladaptive personality traits tended to exhibit “creation of false memories” and within a December 2020 examination report in which the Veteran was diagnosed with PTSD, MDD, and dissociative amnesia, all of which were found to be related to service. A complete medical rationale for all opinions expressed must be provided. 4. After steps 1 and 2 are complete and records are obtained, to the extent available, schedule the Veteran for a VA examination for his lower back and bilateral leg claims. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s conditions manifest in symptoms that cause functional impairment of earning capacity, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is the low back, left leg, and/or right leg disability at least as likely as not related to service, including heat illness in September 1993 and July 2013, or his lay statements attributing his conditions to heat exhaustion and his job duties as a postal clerk during service? Provide a rationale to support the opinion(s). (b) For any finding of arthritis, is it at least as likely as not that the arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. A complete medical rationale for all opinions expressed must be provided. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.