Citation Nr: 21021739 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-15 758 DATE: April 13, 2021 ORDER Service connection for post-traumatic stress disorder (PTSD) is granted. REMANDED Service connection for headaches is remanded. FINDING OF FACT The Veteran’s PTSD is etiologically related to his active duty service, to include in-person assaults. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the United States Marine Corps from August 1980 to June 1981. He testified during a November 2018 videoconference hearing. A transcript of this proceeding has been associated with the record. In November 2020, the Veteran was informed that the Veterans Law Judge (VLJ) who presided over his hearing was no longer with the Board, and offered a hearing before a different VLJ. As the Veteran did not request a new hearing within 30 days of this notice, the Board may proceed with its review of the matter on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. These matters were previously remanded by the Board of Veterans’ Appeals (Board) in March 2019. The Board’s March 2019 remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration.  Preliminarily, the Board notes that the Veteran and the Regional Office (RO) have variously characterized his psychiatric claim as encompassing PTSD, schizophrenia, bipolar disorder, and depression. As will be explained further below, the record supports a finding that PTSD is directly related to service. This constitutes a complete grant of the service connection claim, such that further consideration is not warranted with respect to the additionally cited diagnoses. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Service connection for PTSD is granted. Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the American Psychiatric Association’s DSM. 38 C.F.R. § 3.304(f). Regarding the first element of service connection, the Veteran was diagnosed with PTSD by a private psychologist in November 2018. See November 2018 Medical Treatment Record. Although the psychologist does not explicitly diagnose the Veteran in accordance with the DSM criteria, the letter clearly states that the Veteran “meets the criteria” for PTSD. In considering the medical expertise of the psychologist and the likelihood that this diagnosis was offered in accordance with medical standards and the DSM criteria, the Board finds that the first element of service connection is established. Regarding the occurrence of an in-service stressor, the Veteran reported experiencing abusive behavior including hazing and racism while serving with the United States Marine Corps. See November 2018 Hearing Transcript. Here, evidence from sources other than the Veteran’s service records may corroborate his account of the stressor incident if the PTSD claim is based on in-service personal assault 38 C.F.R. § 3.304(f)(5). Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Veteran testified that he was subjected to hazing while in service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Specifically, he testified that he was harassed by his chain of command. They would give him extra duties, threatened to take his stripe, and vandalized his personal property. See November 2018 Hearing Transcript pp. 6-10. Prior to his in-service hospitalization, the Veteran reported that he was experiencing job frustration and made multiple somatic complaints. On April 23, 1981, the Veteran experienced about 12 hours of confusion and anxiety, in addition to a feeling of “falling apart”. See July 1981 Service Treatment Record pp. 26. The Veteran testified that during this confusion, he had his gun drawn on his duty station. See November 2018 Hearing Transcript p. 7. While armed and standing duty at the shipyard gate, he had the impression that cars were coming at him and closing in on him. Following the incident, he was hospitalized at Peace Air Force Base Hospital for crisis intervention. Initially, the Veteran was agitated, tearful, and refused to sit down. During his hospitalization, he was diagnosed with a personality disorder prior to discharge. See July 1981 Service Treatment Record pp. 25, 26. The Veteran received an honorable discharge, but it was noted that the reason for his separation was unsuitability, due to personality disorders. See August 1989 DD-214 Form. Affording the Veteran the benefit of the doubt, the Board finds that the record shows evidence of a hospitalization and mental health symptoms while in service, which are sufficient to corroborate the Veteran’s claimed stressor. 38 C.F.R. § 3.304(f)(5). His testimony is also found to be competent and credible regarding the claimed in-service event. Miller v. Wilkie, 32 Vet. App. 249 (2020). Therefore, the second element of service connection has been satisfied. Lastly, the evidence demonstrates a nexus between the Veteran’s current disability and his in-service stressor. The Veteran submitted a private nexus opinion in November 2018. The examiner concluded the Veteran’s diagnosis of PTSD was at least as likely as not a result of service during his enlistment in the United States Marine Corps from 1980 to 1981. She reasoned that his PTSD was caused by or the result of the reported chronic harassment, racism, victimization and destruction of his personal property and other hazing incidents which resulted in fear for his life. Further, the examiner noted that the Veteran was able to provide account of several specific incidents which continued to result in fear of others, perceived threat, recurrent and intrusive thoughts, anxiety and avoidance behaviors. He also noted that he was not able to attribute these symptoms to other events in his life. See November 2018 Medical Treatment Record. The Veteran was also afforded a VA examination pursuant to the March 2019 Board remand directives, in December 2019. The examiner found the Veteran did not have a mental disorder diagnosis and failed to meet the DSM 5 criteria for PTSD. Further, the examiner found that validity testing results indicated the Veteran appeared to be over-exaggerating or feigning psychological symptoms in efforts to appear more mentally ill than he actually is. See December 2019 VA examination. The Board finds that the December 2019 examiner’s rationale regarding service connection is conclusory, unclear, and appears to be based on an inaccurate factual predicate. The examiner found the Veteran did not have a diagnosis for any mental disorder at the time of the December 2019 examination. However, the examiner failed to acknowledge that the Veteran had been previously diagnosed for PTSD by a licensed psychologist in November 2018. The examiner also failed to account for the in-service documentation of mental health symptoms, and his competent testimony of a current disability. See November 2018 Medical Treatment Record. Therefore, the examination lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the probative value of a medical opinion is derived from its factually accurate, fully articulated, and sound reasoning for the conclusion); Reonal v. Brown, 5 Vet. App. 458 (1993) (noting that a medical opinion based on an inaccurate factual predicate lacks probative value). As noted above, the Board finds the December 2019 examiner’s opinion inadequate, which leaves the November 2018 private physicians’ opinion as the most probative evidence of record. Notably, the private physician offered a definitive opinion supported by a detailed rationale, with direct contemplation as to the Veteran’s testimony regarding the in-service stressor, his current symptoms, and supporting military and medical records. Accordingly, the third element of service connection is met. As all three elements of service connection have been met, service connection for PTSD is warranted. REASONS FOR REMAND Entitlement to service connection for headaches is remanded. The Board previously remanded this matter in March 2019 for additional development, including a VA examination. Regarding the VA examination, the examiner was directed to opine as to whether it was at least as likely as not that the Veteran’s headaches had an onset in service or within one year of separation from service or are otherwise related to in-service acoustic trauma. See March 2019 Board Decision. Following the March 2019 Board remand, the Veteran was afforded a VA examination in December 2019. The examiner found there was no objective medical evidence of record to render a diagnosis for sinus or migraine headaches. The examiner concluded the Veteran’s condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned there was no objective medical evidence that the Veteran’s remote history of migraine headaches was incurred in or caused by his headaches during service. In service, the Veteran’s headaches were diagnosed as episodic headaches thought to be either due to seizures or neuropsychiatric. See December 2019 VA examination. The Board finds that the examiner’s rationale regarding service connection is conclusory, unclear, and appears to be based on an inaccurate factual predicate. The examiner reasoned that the Veteran’s in-service headaches were diagnosed as episodic headaches thought to be either due to seizures or neuropsychiatric. However, an April 1980 report diagnosed the Veteran with tension headaches. See July 1981 Service Treatment Record p. 35. This opinion lacks sound reasoning and appears to be based on an inaccurate predicate; therefore, the examination lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the probative value of a medical opinion is derived from its factually accurate, fully articulated, and sound reasoning for the conclusion); Reonal v. Brown, 5 Vet. App. 458 (1993) (noting that a medical opinion based on an inaccurate factual predicate lacks probative value). Moreover, the examiner recommended that if the RO still needs clarification or a current diagnosis, the December 2019 examiner would recommend the Veteran be examined by a neurology specialist for an evaluation and opinion. Such action has not been undertaken to date. Additionally, the December 2019 examiner opined that the Veteran’s headaches could be neuropsychiatric in nature. Given the grant of service connection for PTSD herein, a secondary nexus opinion is now warranted. In sum, the Board finds that an additional examination is necessary in order to fully consider the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate).  The matter is REMANDED for the following action: Schedule the Veteran for a new examination by a neurology specialist (or other appropriate specialist) to ascertain the nature and etiology of the Veteran’s headaches. Any indicated evaluations, studies, and tests deemed necessary should be accomplished. After eliciting a history of the Veteran’s disability, the examiner should offer comments, an opinion and a supporting rationale for the following: (a.) Provide a diagnosis for the Veteran’s current headache condition. The examiner should note the Veteran has a been treated for a headache condition. See March 2016 CAPRI p. 15; see also June 1995 Medical Treatment Record p. 7. (b.) Is it at least as likely as not that the Veteran’s headaches had an onset in service or within one year of separation from service, or are otherwise etiologically related to service, to include the Veteran’s acknowledged in-service acoustic trauma? The examiner should note the Veteran experienced tension headaches while in service. See July 1981 Service Treatment Record p. 35. He has reported chronic symptoms since that time. (c.) Is it at least as likely as not that the Veteran’s headache disorder is caused or aggravated by now-service-connected PTSD or the treatment thereof? Here, the examiner should address the notation of the December 2019 VA examiner that the Veteran’s headaches might be neuropsychiatric in nature. In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.  A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran was competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.