Citation Nr: 21013765 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-28 046 DATE: March 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include on a secondary basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to September 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 decision, the Board denied service connection for an acquired psychiatric disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the December 2017 Board decision that denied entitlement to service connection for an acquired psychiatric disorder, and remanded the matter for action consistent with terms of the JMPR. In May 2019, the Board remanded the issue as directed by the Court. This case was before the Board again in August 2020. The Veteran’s claim was remanded for additional development. The case is now again before the Board for further appellate action. Entitlement to service connection for an acquired psychiatric disorder, to include on a secondary basis, is remanded. In August 2020, the Board remanded the Veteran’s service connection claim for an acquired psychiatric disorder as the Board had found that a May 2015 VA examination was inadequate due to the examiner’s failure to remark upon findings made during the pendency of the appeal, including diagnoses of unspecified mood disorder and adjustment disorder and a prescription for an antidepressant. The Board directed the RO to provide a new VA examination and medical opinion concerning the etiology of any diagnosed psychiatric disorder made during the pendency of the appeal, to include unspecified mood disorder and adjustment disorder. In January 2021, the Veteran was provided a VA mental disorders examination. The examiner reported that the Veteran did not have a mental disorder and had never been diagnosed with a mental disorder. The examiner opined that it was less likely as not that the Veteran had an acquired psychiatric disorder that was incurred or aggravated by an in-service injury, event, or illness, as there was no diagnosis of a mental disorder. The examiner also opined that it was less likely as not that the Veteran had an acquired psychiatric disorder that was proximately due to or the result of the Veteran’s service-connected disabilities, as there was no diagnosis of a mental disorder. The examiner concluded that a baseline level of severity of an acquired psychiatric disorder could not be determined based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by service-connected disabilities. As rationale, the examiner discounted an April 2015 diagnosis of a mood disorder by a registered nurse as it described mixed moods including angry, anxious, dysphoric, and depressed moods with no reference to the other markers of a mood disorder. Thus, the examiner concluded that there was no baseline to measure against. Because the examiner’s opinion was at least based in part on his conclusion that there was no diagnosis of a mental disorder during the pendency of the claim, the Board finds the examiner’s opinion is inadequate, as a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran’s claims file includes a March 2015 VA mental health record in which a clinical psychologist diagnosed the Veteran with unspecified mood disorder and adjustment disorder. The Veteran had complained of mild anxiety and depression related to tinnitus and family stress. By failing to consider the clinical psychologist’s March 2015 diagnosis of mood disorder and adjustment disorder, the opinion and rationale provided by the examiner also failed to sufficiently analyze relevant evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Due to these deficiencies of the January 2021 medical opinion, remand is warranted to obtain an addendum opinion to address the etiology of any diagnosed psychiatric disorder made during the pendency of the appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Return the claims file, including a copy of this remand, to the VA examiner who conducted the January 2021 VA mental disorders examination, or to another appropriate psychiatrist or psychologist if that individual is unavailable, to provide an addendum opinion regarding the etiology of the Veteran’s acquired psychiatric disorder. The Veteran’s claims file, to include a copy of this remand, must be made available to the examiner along with any other information the medical professional deems pertinent. If an additional examination is required for the examiner to sufficiently provide an etiology opinion, a new examination should be afforded. 4. The examiner should set forth all examination findings and a complete rationale for any opinion expressed should be provided. Following the review of the claims file and examination of the Veteran, if deemed necessary, the examiner is then requested to respond to the following: a) Is it at least as likely as not that any diagnosed psychiatric disorder is related to his active duty service? b) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disorder is proximately due to or caused by a service-connected disability, to include tinnitus? c) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disorder has been aggravated by a service-connected disability, to include tinnitus? 5. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 6. When rendering the requested opinions, the examiner should consider the Veteran’s post-service VA treatment records which reflect diagnoses of unspecified mood disorder and adjustment disorder, a prescription for an antidepressant, as well as reported symptoms of depression and anxiety and a report of anxiety/depression related to tinnitus and family stress, found in 2015 and 2016 treatment records. 7. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.