Citation Nr: 21021803 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-41 847 DATE: April 14, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for rib dislocation and any associated residuals is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 through September 2006. The Veteran testified at a Board hearing before the undersigned in December 2020. A transcript of the hearing is associated with the claims file. In November 2014, the Veteran perfected appeals of entitlement to service connection for traumatic brain injury (TBI), migraine headaches, and bilateral pes planus (claimed as left and right arches and feet problems). In May 2019, the VA Regional Office (RO) issued a rating decision granting entitlement to service connection for bilateral tibial sesamoiditis and metatarsalgia, TBI, and migraine headaches. The Veteran was informed that this was determined to be a full grant of the benefits sought on appeal for these issues. The Veteran has not expressed disagreement with this decision; as such, those issues are no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As discussed at the Veteran’s December 2020 hearing, the Veteran has appealed multiple issues that he has indicated are related to a claim for entitlement to service connection for an acquired psychiatric disorder (entitlement to service connection for posttraumatic stress disorder (PTSD), entitlement to service connection for a sleep disorder, entitlement to service connection for anxiety, entitlement to service connection for depression, and entitlement to service connection for short term memory loss). The record also indicates that the Veteran has previously been diagnosed with Depressive disorder and adjustment disorder, with anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court’s decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized these claims as a single claim for service connection for an acquired psychiatric disorder. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board finds that additional development is necessary prior to adjudicating the Veteran’s claim for entitlement to service connection for a psychiatric disorder. The Veteran was provided VA examinations in February 2018 and February 2019 from the same examiner. In response to both evaluations, the examiner opined that the Veteran did not have a mental disorder that conforms with DSM-5 criteria. The Board notes that in May 2015, during the appeal period, the Veteran was provided a mental health evaluation by a VA clinical psychologist with the Cheyenne VA Medical System. The psychologist provided a diagnosis of adjustment disorder, with anxiety pursuant to the DSM-5. Additionally, the Veteran’s treatment records indicate a diagnosis of Depressive disorder in March 2011. The February 2018 and 2019 examiner does not discuss these diagnoses and the Board finds the opinions provided to be inadequate; as such, a new medical opinion should be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. As such, the Board finds that a new VA examination should be afforded that addresses the diagnoses provided during the appeal period. 2. Entitlement to service connection for rib dislocation and any associated residuals is remanded. The Veteran was also provided VA examination in April 2018 regarding the Veteran’s claim for “a rib dislocation.” The examiner notes that the Veteran “reports being told that he had a dislocated left first rib in 2012-13 by physical therapist who reported it could be seen on imaging.” The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness based upon a rationale that “there is insufficient clinical evidence to support a diagnosis associated with rib dislocation, normal PE and x-rays.” It appears that the examiner is stating that there are no current residuals to provide a diagnosis; however, as noted above, the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McClain. As such, the Board finds that a new examination should be afforded to discuss whether any rib dislocation, or residuals, present during the appeal period are due to the Veteran’s in-service injury or a service-connected condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician (other than the individual who conducted the February 2018 and February 2019 psychiatric examinations, if possible) to determine the nature and etiology of any psychiatric disorder present during the appeal period. The evidence of record should be made available to the examiner for review. All indicated diagnostic testing should be conducted. The VA examiner should identify all acquired psychiatric diagnoses provided during the appeal period and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder diagnosed during the appeal period had its onset in service or is otherwise is related to service. If a diagnosis of PTSD is rendered, the examiner must opine as to the following: (i) whether the claimed stressor is adequate to support a diagnosis of PTSD; (ii) whether the Veteran’s symptoms are related to the claimed stressor; and, (iii) whether the claimed stressor relates to fear of hostile military or terrorist activity. In rendering the above opinions, the Board directs the VA examiner’s attention to, but to not limit his or her review to, the following evidence: (i) VA treatment records from Cheyenne VA dated May 2015, showing a diagnosis of adjustment disorder with anxiety; the notation from the May 2015 psychologist that Veteran’s primary issue seems related to medical discharge from the military after this accident, and the active problems list reporting Depression. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any provided opinions. A clear explanation for all opinions would be helpful. If the examiner is unable to provide an opinion he or she should explain why. 2. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of any rib disability (or its residuals) present since the Veteran filed his claim in February 2012. The claims file must be provided to the examiner for review. All indicated tests and studies should be performed. The examiner is asked to opine whether it is as least as likely as not (50 percent probability or more) that any rib disability, or its residuals, had its onset during service is otherwise causally or etiologically related to service, to include his in-service bicycle injury in 2006. If not, the examiner is asked to opine whether it is as least as likely as not (50 percent probability or more) that any rib disability, or its residuals, is due to any service-connected disability, to include his left shoulder. 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 opinion. Any opinions expressed must be accompanied by a complete rationale. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.