Citation Nr: 21014921 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-28 680 DATE: March 16, 2021 REMANDED Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left eye condition is remanded. Entitlement to service connection for a dizziness condition is remanded. Entitlement to service connection for a headache condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to an initial compensable rating for service-connected scars is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to April 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Preliminarily, the Board notes that although the Veteran submitted a claim for PTSD, the Board has recharacterized the issue as a claim for an acquired psychiatric disability, generally. The Veteran cannot be required to know whether the symptoms he is claiming service connection for are related to PTSD or another psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In August 2018, the Veteran requested a Board hearing. In April 2019, the Veteran was notified of the time and place of the Board hearing he requested in connection with the present appeal. See 38 C.F.R. § 20.704(b). He failed to report, however, and no motion for rescheduling has been received. Accordingly, the Board will process his appeal as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d). The Board notes that in February 2015, the Veteran appointed Disabled American Veterans (DAV) as his representative. See February 2015 VA 21-22. In October 2017, the Veteran’s appeal was formally placed on the Board’s docket. In April 2018, DAV submitted an Appellant’s Brief on behalf of the Veteran. In October 2018, the Veteran submitted a new VA 21-22 appointing The American Legion as his representative. In February 2021, the American Legion submitted correspondence indicating that the Veteran had not submitted good cause motion to justify the change in representation in violation of 38 C.F.R. § 20.1305(b) (2019) and that DAV should be the Veteran’s representative. The Board agrees that the Veteran’s appropriate representative is DAV. The agency of original jurisdiction (AOJ) is asked to confirm that DAV is the Veteran’s representative. As the matter is being remanded, the Veteran is not prejudiced by this action. Upon review of the record, the Board finds that the issues must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to service connection for a right ankle condition is remanded. The Veteran contends he “broke” his right ankle in service and had problems ever since service. His service treatment records do not confirm an in-service right ankle fracture or any right ankle injury specifically, but do show other fights/alterations that resulted in knife wounds and injuries generally (although not specifically to the right ankle). The Veteran was afforded a VA examination in June 2014, which included an examination of his right ankle, but the Board finds this examination is inadequate to render a decision at this time as the examination does not contain an adequate etiology opinion and is overall unclear. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). An examiner’s explanation is adequate when it “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” In particular, in one part of the examination report, the examiner noted that the Veteran reported the sprain occurred in 1975. In another part of the report, the examiner reported that the Veteran “states [he] sustained fractured ankle during military service in 1985, treated with a cast ‘for about 3 months,’ now c/o pain and limited motion of the right ankle.” (Emphasis added). Even supposing the date is a typographical error, the VA examiner did not offer an opinion as to whether the Veteran has a current right ankle condition due to his military service, to include the reported 1975 sprain, or any other incident of his military service. Additionally, in his February 2014 claim, the Veteran indicated that his right ankle was treated at the Birmingham VAMC shortly after service in 1977. Those treatment records 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 Veteran’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). 2. Entitlement to service connection for a left eye condition is remanded. The Veteran contends he has a left eye condition due to an in-service alteration where he was robbed and attacked. Indeed, his service treatment records confirm he was seen in January 1975 for multiple lacerations to the face and scalp related to some altercation where he received multiple knife wounds. The Veteran was afforded a VA examination in April 2014, but the Board finds this examination inadequate to render a decision at this time. At that time, the examiner diagnosed the Veteran solely with age-related cataracts. Evidence received since this examination indicates the Veteran also has been diagnosed with anisocoria of the left eye in December 2017. See October 2018 CAPRI. The Board finds that a new examination would be helpful to account for this more recent diagnosis and whether it is etiologically due to the in-service lacerations. Additionally, while an opinion has been sought to examine the relationship between the Veteran’s eye disability and service, no opinion has addressed whether the Veteran’s eye disability may be related to his service-connected scars. Again, the Veteran’s service treatment records reflect that he was seen in January 1975 for multiple lacerations to the face and scalp. In his April 2014 notice of disagreement (NOD), the Veteran stated that he had experienced left eye problems since the incident. No examiner has commented on whether his service-connected scars caused or aggravated any left eye condition he currently has. See 38 C.F.R. § 3.310. Thus, further examination and opinion is warranted. 3. Entitlement to service connection for a dizziness condition is remanded. 4. Entitlement to service connection for a headache condition is remanded. The Veteran contends he has headaches and a condition manifested by dizziness as a result of an in-service car accident and an alteration where he was “robbed” in service. Again, his service treatment records do confirm an alteration that resulted in multiple knife lacerations in the head and scalp. Additionally, in June 1975, he was seen for injuries incurred to the stomach, neck, and head after being “hit” by a military policeman. There are also periodic complaints of headaches and dizziness in the service treatment records. The Veteran was afforded a VA examination in April 2014 to ascertain whether the Veteran had current conditions related to his military service. The Board finds this examination inadequate to base a decision at this time. In particular, the examiner found that it was less likely than not that the Veteran’s disabilities were related to service as the Veteran’s post service treatment records lacked evidence of complaints or treatment for dizziness or headaches. In contrast, a review of the Veteran’s VA treatment records reflects that the Veteran was seen for complaints of headaches in December 2013, January 2014, and February 2014; additionally, in March 2014 the Veteran reported that he had “experienced episodes of dizziness for a longtime.” See April 2014 CAPRI. A medical opinion based on an inaccurate factual premise must be dismissed as non-probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). As it appears that the examiner’s opinions were based on inaccurate factual premises and were largely incomplete as to consideration of the Veteran’s contentions of symptoms since service, new examinations are warranted. 5. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Board finds that new VA examination and opinion is warranted for the Veteran’s acquired psychiatric disorder claim. In March 2014, a VA examiner diagnosed the Veteran with severe cocaine use disorder, severe opiate use disorder, severe alcohol use disorder, mild neurocognitive disorder, and drug induced anxiety disorder; all of which the examiner found were not related to the Veteran’s service. In May 2014, the same VA examiner opined that the Veteran did not have PTSD, depression, and anxiety. The Board notes while the examiner found that the Veteran did not have PTSD, depression, and anxiety, that were related to service; the examiner did not opine as to whether the Veteran had any other psychiatric disorders that were related to service. Since that examination, the Veteran also been diagnosed with psychotic disorder NOS, unspecified episodic mood disorder, and mood disorder of depressed type. Additionally, prior to the examination the Veteran had been diagnosed with antisocial personality disorder. See February 2014 CAPRI. The Board finds that a new examination would be helpful to account for the prior and more recent diagnoses, especially in light of service treatment records indicative of at least two alterations where the Veteran received significant injuries, knife lacerations, and injuries after being hit by a military policeman. Additionally, with regard to the Veteran’s PTSD claim the Board notes that although the stressors underlying the Veteran’s PTSD claim include an in-service personal assault, the AOJ did not provide the Veteran with VCAA notice specific to personal assault as required by 38 C.F.R. § 3.304(f)(5). See March 2014 CAPRI. A June 1975 entry in the Veteran’s service treatment records (STRs) indicates that the Veteran was seen after being hit in the stomach, neck, and head by an M.P. The Board notes that the assault involving the M.P. is in addition to Veteran’s other in-service assault, which was an altercation after a motor vehicle accident and was already conceded. Accordingly, the AOJ should send the Veteran and his representative the required notice regarding a claim for PTSD based on personal assault, to include a VA Form 21-0781a, Statement in Support of Claim. 6. Entitlement to a compensable rating for service-connected scars is remanded. Evidence of record indicates that the Veteran failed to report for VA examination in January 2018. However, there is no indication that the Veteran was provided the requisite notice for the examination. The Board therefore finds that a remand is required to afford the Veteran another opportunity to appear for another examination to assist in his claim. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. Specifically, any and all records from the Birmingham VAMC from 1977 should be sought. The evidence obtained, if any, should be associated with the record. 3. Provide the Veteran notice regarding PTSD claims based on personal assault and request that he complete a VA Form 21-0781a, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault. Then perform any additional necessary development to obtain and review any new evidence identified in the Veteran’s response to this form. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right ankle condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, and after eliciting a detailed history of the Veteran’s condition from the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran’s current right ankle condition had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of injuring his right ankle during service. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the left eye condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, and after eliciting a detailed history of the Veteran’s condition from the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran’s current left eye condition had its onset in or is related to service? b) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that a left eye disability was caused or aggravated by the Veteran’s service-connected scar. • If the examiner finds that the Veteran’s left eye disability, was aggravated by his service-connected scar, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected scar. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of injuring his left eye during service. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the dizziness condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, and after eliciting a detailed history of the Veteran’s condition from the Veteran, the examiner should respond to the following: a) Does the Veteran have a dizziness condition and, if so, is it at least as likely as not (probability of 50 percent or more) that the Veteran’s current dizziness condition had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of experiencing dizziness during service and after service. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is also directed to consider in-service records confirming alterations where the Veteran received knife laceration wounds to the head and scalp, injuries after an incident where he was hit by a military policeman, and at least some specific complaints of dizziness in October 1975. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of the headache condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, and after eliciting a detailed history of the Veteran’s condition from the Veteran, the examiner should respond to the following: a) Whether the Veteran currently has a headaches condition and, if so, whether it is at least as likely as not (probability of 50 percent or more) that the Veteran’s current headache condition had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements of experiencing headaches during service and after service. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is also directed to consider the Veteran’s STR’s which indicate complaints of headaches in January 1975, February 1975, October 1975, and September 1975 as well as in-service alterations where he received multiple knife wound lacerations to the head and scalp, and was hit by a military policeman. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 8. 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). a) 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, to include being hit by a military policeman, the alteration after the motor vehicle accident, or the multiple knife wound lacerations. b) 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. c) 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 January 1975 and June 1975 STRs which reflect that the Veteran was involved in altercations. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the any newly obtained evidence pursuant to the PTSD assault development discussed above. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 9. Schedule the Veteran for an examination to determine the current severity of the Veteran’s service-connected scar. 10. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2019). 11. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 12. 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, 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.