Citation Nr: 21021974 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-40 984A DATE: April 14, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and unspecified depressive disorder, is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to PTSD, is remanded. REASONS FOR REMAND The Veteran served on active service in the United States Army from October 1962 to October 1965. In February 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and unspecified depressive disorder. In its July 2019 decision, the Board denied this claim. The Veteran appealed to United States Court of Appeals for Veterans Claims (the Court), which in May 2020 vacated and remanded the claim to the Board for action consistent with the Joint Motion for Partial Remand (JMPR), agreed to and submitted by the parties. The parties agree that the Board failed to seek clarification from Dr. E.F.V., who conducted a March 2014 private Disability Benefits Questionnaire (DBQ) for PTSD and Dr. V.U., who produced a June 2014 private nexus statement. The Board had noted that both examiners did not specify whether the criteria used for determining PTSD was from the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (DSM – 5) or the 4th edition (DSM – IV), as VA is required by regulation to recognize only diagnoses which conform to DSM – V and, for the purposes of Board or AOJ adjudication, anything else is legally insufficient. See 38 C.F.R. § 4.125 (a) (2020). The parties to the JMPR agree that when private medical opinions are missing relevant, factual, and objective information, the Secretary has a duty to seek clarification from the private provider where the purported missing information is a relevant, objective fact. See Savage v. Shinseki, 26 Vet. App. 259, 270 (2011). The parties further agree that, although the Board found the March 2014 VA examination for PTSD highly probative and relied on its accompanying opinion for denial of the claim, the examination, while not finding the Veteran has PTSD, did find he has an unspecified depressive disorder. However, although the March 2013 VA examiner stated she could not link the Veteran’s depressive symptoms to “fear of hostile military or terrorist activity,” as required for PTSD, she did not address in her opinion’s rationale whether depressive disorder in fact is related to active service. For these reasons, the claim is remanded to address the above deficiencies. 2. Entitlement to service connection for migraine headaches. The July 2019 Board decision also denied this claim and the Veteran appealed. The parties to the JMPR agree that the Board did not adequately address whether a showing of continuity of symptomatology after discharge supports the claim for service connection, specifically, whether medical or lay evidence establishes a nexus between the Veteran’s present disability and the post-service symptomatology he reported, but for which he did not seek medical treatment until 2013. Based on the foregoing, the Board will remand the claim for new VA examination and opinion. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to PTSD. These claims were denied by the Board in July 2019. The partis to the JMPR agree these issues are inextricably intertwined with the issue of service connection for acquired psychiatric disorder, as the June 2014 private nexus statement of Dr. W.P.K. states the Veteran’s hypertension is aggravated by his PTSD and depression and similarly stated his erectile disorder is the result of or at least aggravated by his medications used to treat PTSD. As such, the parties agree the claims should be remanded to be adjudicated together. The Board will therefore defer appellate adjudication and remands the claims. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for any psychiatric disorder, for headaches, for hypertension, and for erectile dysfunction at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. Simultaneous to the above directive, contact by letter Dr. E.F.V., who conducted the March 2014 private DBQ for PTSD and Dr. V.U., who produced a June 2014 private nexus statement (found in the file at June 28, 2014 third party correspondence), and Dr. L.R.M., who conducted a November 2017 DBQ for PTSD (found in the file at February 7, 2018 among a collection of examinations). Enclose a copy of their examinations/nexus statement. Request that they each review their examinations and nexus statement and, as a point of clarification, state in writing what criteria they used to make their determinations, specifically, whether they used DSM – 5 (5th Edition) or the DSM – IV (4th edition). If DSM – IV. 3. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for VA examinations by examiners with appropriate specialties for producing findings for psychiatric disorders and for headaches, to include migraines. The complete electronic claims file must be made available to the examiners in conjunction with the opinion reviews and/or examination. The examiners should detail all findings. The examiner for psychiatric disorders, after identifying what psychiatric disorder or disorders the Veteran has, is requested to render opinions addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that PTSD was incurred during active service or was caused by an event, injury, or illness during active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that depression, depressive disorder, or any other psychiatric disorder other than PTSD was incurred during active service or was caused by an event, injury, or illness during active service. The opinions rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationale on any relevant opinions found in the record. The examiner is further requested to acknowledge, address, consider, and discuss the Veteran’s February 2019 Board hearing testimony, his lay statements accompanying the February 2014 Notice of Disagreement and the August 2016 Veterans Appeals Form 9 and the two June 2013 Statements in Support of Claim, as well as the Veteran’s reports to treatment providers, as they appear throughout the record, and all lay evidence of other persons as it pertains to psychiatric disorders. The Board urges the examiner to note that findings or opinions rendered without addressing and discussing the lay evidence of the Veteran and others will be deemed insufficient for purposes of VA adjudication The examiner for headaches, to include migraines, is requested to render opinions addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that headaches, to include migraines, were incurred during active service or was caused by an event, injury, or illness during active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that headaches, to include migraines, present “a continuity of symptomatology,” whereby, (1) headaches, to include migraines, were noted during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) medical evidence or the Veteran’s lay evidence provides sufficient evidence of a nexus between the present disability and the post-service symptomatology, thereby supporting a finding of service connection. The VA examiner should note that all 3 elements just set forth must be established for service connection based on continuity of symptomatology. 4. After completing the above development and any other indicated development, the AOJ should adjudicate the claims, to include the inextricably intertwined claims of service connection for hypertension and for erectile dysfunction. If the benefits sought are not granted,   provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate opportunity to respond before returning the case to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.