Citation Nr: 21021729 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-21 109 DATE: April 13, 2021 THE ISSUE Entitlement to service connection for an acquired psychiatric disability, including PTSD and a depressive disorder, to include as secondary to a service-connected traumatic brain injury (TBI). REMANDED Entitlement to service connection for an acquired psychiatric disability, including PTSD and a depressive disorder, to include as secondary to a service-connected TBI is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to September 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in Florida. A transcript of the hearing is of record. This matter was last before the board, along with the issue of entitlement to service connection for a headache disability, in February 2020, at which point the issues were remanded for further development. In a January 2021 rating decision, the RO granted service connection for a headache disability. As that decision represents a complete grant of benefits sought, that issue is no longer before the Board. The Board finds that an additional remand is necessary in order to provide further development of the claim that remains on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disability, including PTSD and a depressive disorder, to include as secondary to a service-connected TBI is remanded. The Veteran asserts that he has an acquired psychiatric disability that is due to his active duty service, to include as due to his service-connected TBI. In order to determine the nature and etiology of the claimed psychiatric disorder, the Veteran was afforded a VA examination in November 2013. The VA examiner diagnosed the Veteran with a depressive disorder, alcohol dependence, cocaine dependence, and cannibis dependence, but found that the Veteran did not meet the DSM criteria for a diagnosis of PTSD. The examiner found that the Veteran’s current acquired psychiatric disability was less likely than not caused by the claimed in-service injury. The VA examiner provided the following rationale. “Veteran began abusing alcohol, marijuana, cocaine, and heroine prior to his enlistment in the Army in 1982 at the age of 30. He was discharged within 13 months of enlistment for substance abuse. Veteran’s current mental health problems appear to be related to his extensive dependence on alcohol and drugs, as well as numerous situational stressors (many of which are the result of abusing substance for nearly 50 years). Veteran completed a C&P TBI evaluation [in November 2013]. Per the results of this assessment, ‘The veteran had a documented head injury which occurred off-post while on active duty. However, the documents stated that “neuro intact; x-rays - no new fx.” This does not support other sequelae claimed such as sleep problems, depression with anxiety, headaches, and memory loss.’ Given Veteran’s extensive drug and alcohol abuse history and the results of his TBI C&P examination, it is the opinion of this examiner that Veteran’s current psychological diagnoses are LESS LIKELY THAN NOT incurred in or caused by the head laceration he received in January of 1983.” The Veteran, at the December 2019 Board hearing, testified that he did not have pre-existing drug use prior to entering service, and that the premise on which the VA opinion was based was not factually accurate. The Veteran submitted a private medical opinion in January 2020. The private examiner, Dr. D. B. noted that she reviewed “medical records,” but did not note a review of the Veteran’s claims file, nor did she indicate that she reviewed the Veteran’s service treatment records. After a video phone interview, Dr. D. B. diagnosed the Veteran with PTSD, depressive disorder, a neurocognitive disorder due to a TBI, alcohol use disorder, cocaine use disorder, and a cannabis use disorder. The private examiner opined that the Veteran’s current “mental health conditions resulted from and/or were exacerbated by his exposure to traumatic events during his service in the United States Army.” Dr. D. B. indicated that the Veteran served in the U. S. Army from 1982 to 1986 and that he participated in “war games, and “pretend war play” during that time. The private examiner wrote: “He was exposed to constant gun fire, being hit with rubber bullets, ‘gas chamber training,’ and the full intended effects of what real combat and war would be.” However, Dr. D. B. did not address or attempt to reconcile her opinion with the opinion and findings of the November 2013 VA examiner. In February 2020, the Board remanded the matter in order to clarify the Veteran’s dates of service, to obtain outstanding VA treatment records from the St. Petersburg VAMC from 1993, and to schedule an additional VA psychological examination with opinion. Additionally, the Board noted that there appeared to be outstanding VA treatment records. In an October 2013 VA treatment note, the Veteran indicated that he received treatment at the St. Petersburg VAMC in 1993. The Board found that those records did not appear to have been associated with the Veteran’s claims file. In relevant part, the Board directed that a VA psychiatric examination and opinion which addresses Dr. D. B.’s January 2020 opinion should be obtained after obtaining VA treatment records. Upon remand the RO obtained VA treatment records from the St. Petersburg VAMC from 1996, which appeared to indicate that the Veteran first registered at the facility in February 1996. Additionally, it was confirmed that the Veteran separated from service in October 1983. The Veteran was then afforded a VA psychiatric examination in November 2020. The examiner recorded diagnoses of unspecified anxiety disorder, insomnia disorder, neurocognitive disorder (due to TBI), alcohol use disorder, cannabis use disorder, and cocaine use disorder. The Veteran was not found to have PTSD which met the criteria under the DSM-5. The Veteran reported his service as between 1982 and 1986 and had a difficult time remembering and describing his in-service experiences. The Board observes that the Veteran is currently in receipt of service-connection for a TBI, and that medical records show that he suffers from residuals in the form of memory issues. While the Veteran met criterion E for a diagnosis of PTSD under the DSM-V, he did not meet any of the other criteria. When addressing his stressor, the examiner noted that the Veteran did not remember any specific trauma, but recorded exposure to “constant gun fire, being hit with rubber bullets, ‘gas chamber training,’ and the full intended effects of what real combat and war would be.” The examiner did not address the Veteran’s in-service assault which resulted in his service-connected TBI. The examiner opined that the Veteran’s psychiatric disabilities, including his unspecified anxiety disorder and insomnia disorder were not at least as likely as not related to his service or caused by his TBI. The examiner explained that the Veteran’s anxiety disability seemed to be related to his construction job and that because his triggers were not military related, his anxiety disability was unlikely the result of his service or service-connected TBI. Specifically, the examiner cited stressful dreams related to the Veteran’s work as a construction worker. Additionally, the examiner explained that the Veteran’s insomnia was likely related to his anxiety disorder and his sleep apnea. The Veteran’s drug use was noted to predate enlistment, and therefore was not attributable to service or TBI. The examiner did not reconcile his findings with those of Dr. D.B., as requested. Therefore, the RO obtained an addendum opinion from the November 2020 examiner in November 2020. The examiner found evidence that Dr D.B. did not review psychological records and did not conduct the necessary psychological testing to render a diagnosis of PTSD, but instead relied exclusively on self-reporting by the Veteran. The examiner also indicated that while Dr. D.B. opined as to the cause of the Veteran’s physical health conditions, she had no medical degree, and that therefore, her opinions were a matter of concern and should be considered skeptically. In January 2021, the Veteran submitted a private examination completed by Mr. Z.G., a licensed mental health counselor (LMHC). Mr. Z.G. diagnosed the Veteran with PTSD, however, it is unclear if the examination was in-person, over the phone, or through video-phone technology. The private examiner opined that the Veteran’s psychiatric disabilities, including PTSD and major depressive disorder, were at least as likely as not caused by the Veteran’s in-service assault which resulted in a TBI. In explanation, Mr. Z.G. wrote that during the November 2013 VA examination, the Veteran’s substance abuse disorders were in remission, and that therefore his psychiatric symptoms could not be caused by his past drug use. Additionally, Mr. Z.G. appears to have recorded the Veteran’s dates of service from August 1982 to August 1986. A subsequent “Review PTSD” disability benefits questionnaire was completed by Dr. S.K. indicated that the doctor had reviewed the work of Mr. Z.G., conducted a video interview, and had determined that the Veteran met the DSM-V criteria for diagnoses of PTSD, major depressive disorder, and alcohol, cannabis, and stimulant use disorders. In relevant part, Dr. S.K. took issue with the November 2020 VA examiner’s rationale, arguing that the Veteran’s nightmares could be interpreted as relating to his military service. While Dr. S.K.’s report is detailed and generally reveals key records were reviewed, the private psychiatrist’s opinion does not seem to be based on the Veteran’s accurate dates of service. Specifically, Dr. S.K. seems to report that the Veteran suffered from PTSD starting in August 1986, and not immediately after the confirmed date of separation in October 1983. For the reasons listed above, the Board finds that an additional remand is necessary in order to afford the Veteran a new VA examination which adequately addresses the Veteran’s stated stressors and reconciles its findings with the findings of Mr. Z.G. and Dr. S.K. Finally, upon remand VA should attempt to obtain any potentially outstanding St. Petersburg VA treatment records from 1993 to 1996, should such exist. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s treatment records from St. Petersburg VAMC (from 1993), should they exist, and associate such with the claims file. Document the search for these records. 2. Thereafter, schedule the Veteran for a VA psychiatric examination. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After review of the claims file and examining the Veteran, the examiner is asked to: (a) Identify the Veteran's currently diagnosed psychiatric disorder(s). If necessary, reconcile any medical findings with those noted in the private records, to include the January 2020 examination from Dr. D. B., the January 2021 examination from Mr. Z.G., and the February 2021 examination from Dr. S.K. indicating that the Veteran has a diagnosis of PTSD and depressive disorder, and that his symptoms are the result of his service. (b) For each identified diagnosis, is at least as likely as not (50 percent or more probability) that the acquired psychiatric disability had its onset or is otherwise related to service, to include as due to a TBI? (c) If PTSD is diagnosed, provide an opinion as to whether it is casually related to any verified stressor, to include as secondary to TBI. In doing so, indicate whether any behavioral markers are shown in the record. Again, if necessary, reconcile any medical findings with those noted in the private records, to include the January 2020 examination from Dr. D. B., the January 2021 examination from Mr. Z.G., and the February 2021 examination from Dr. S.K. indicating that the Veteran has a diagnosis of PTSD and depressive disorder, and that his symptoms are the result of his service. The examiner is to explicitly consider the Veteran’s claimed stressor of being “mugged” while in service, the same incident which resulted in his currently service-connected TBI. The examiner is reminded that the Veteran has been diagnosed with a TBI and that medical records reveal he suffers from memory difficulties as a result. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After completing the above, and any other necessary development, any claim remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.