Citation Nr: 21022292 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 11-31 694 DATE: April 15, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder not otherwise specified (NOS), is remanded. Entitlement to special monthly compensation (SMC) for the loss of use of a creative organ is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1977 to October 1980, with subsequent Reserve service. This matter comes before the Board of Veterans ‘Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Following the Board’s January 2014 remand, the Veteran was afforded a videoconference hearing before the undersigned in December 2015. The Board subsequently remanded the appeal in March 2016, November 2017, and November 2019. 1. Entitlement to service connection for any acquired psychiatric disability, to include PTSD and depressive disorder NOS, is remanded. The Veteran asserts that he was injured while on active duty when a propeller from a radio-controlled plane he was operating cut into his groin and that this injury is the proximate cause of his current psychiatric disorder. See August 2008 VA Form 21-526, April 2010 VA Form 21-4138, December 2015 Board Hearing Transcript at 4. Throughout the appeal period, or since August 2008, the Veteran has been diagnosed with marijuana dependence, alcohol dependence, adjustment disorder with depressed mood, PTSD, depression NOS, insomnia, and unspecified trauma/stressor related disorder. See January 2010, February 2010, November 2012, June 2018, September 2018, January 2019, June 2019 VA treatment records; October 2010 Social Security Administration psychiatric records; January 2011 private treatment records. An examiner noted that the Veteran was possibly malingering during a January 2010 psychiatric evaluation. In this regard, the Veteran submitted to a VA examination in January 2020 and was diagnosed with cannabis use disorder, mild, with cocaine use disorder in sustained remission. Initially, the Board notes that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301. The January 2020 VA examiner discussed the Veteran’s diagnosis of PTSD but opined that his PTSD symptoms were associated with homelessness and unemployment. Regarding the Veteran’s diagnosis of depressive disorder, the January 2020 VA examiner noted that the Veteran’s symptoms had resolved. The examiner’s reliance on the symptoms resolving during the appeal period renders his opinion inadequate. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Thus, the January 2020 VA examiner’s opinion is of very little probative value. In February 2020, private treatment records from Dr. J.M. were received. At the Veteran’s initial psychiatric evaluation in July 2011 with Dr. J.M., the Veteran reported that the VA had service-connected him for PTSD. Dr. J.M. noted that he had requested VA treatment records for review, but that none were received at the time of the examination. Based on the Veteran’s reported history, the examiner noted the Veteran experienced symptoms of PTSD resulting from an in-service injury. However, Dr. J.M. opined that the Veteran’s psychiatric symptoms of PTSD and depressive disorder NOS were causally related to a February 2011 work injury. See July 2011 private treatment records. The Board notes that the Veteran was struck by a truck while operating a motorcycle on February 24, 2011. See May 2011 Social Security Administration records, February 2011 private hospital treatment records. Thus, while Dr. J.M. discusses the Veteran’s in-service injury resulting in PTSD symptoms, his report essentially adopted the Veteran’s subjective reports and was not based on a review of medical evidence. The United States Court of Appeals for Veterans Claims has held that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. See Grover v. West, 12 Vet. App. 109, 112 (1999). As Dr. J.M. specifically noted that he had no records to review, any opinion regarding the Veteran’s PTSD symptoms beginning in service or being related to an in-service injury are of no probative value. In October 2020, the Veteran submitted a statement from Dr. S.S., a VA psychologist, who opined that the Veteran’s PTSD, diagnosed in November 2012, was primarily the result of traumatic experiences incurred during active duty. The Board notes that Dr. S.S. relied on a diagnosis rendered by a psychological intern (unlicensed psychologist) and additionally did not state what traumatic experience the Veteran had while on active duty. Thus, the Board finds the October 2019 letter from Dr. S.S. to be inadequate and of no probative value. Accordingly, for the reasons set forth above, a new opinion regarding a relationship, if any, between the Veteran’s current psychiatric diagnoses and the in-service injury with a remote-control plane is required on remand. Any relevant outstanding treatment records should also be obtained. 2. Entitlement to special monthly compensation for the loss of use of a creative organ is remanded. The Veteran asserts that the in-service accident with a remote-control plane that caused the now service-connected scars of his groin is the proximate cause of his erectile dysfunction. See January 2010 VA Form 21-4138, December 2015 Board Hearing Transcript at 5. The Veteran submitted to a VA examination in January 2020 and was diagnosed with erectile dysfunction (ED). The January 2020 VA examiner opined that the Veteran’s ED was less likely than not related to the superficial laceration in service or the resultant three small, stable, circular scars to his groin area. In support of his opinion, the examiner noted the Veteran could achieve an erection with medication. The Board notes that the medical opinion is conclusory and that the rationale provided is inadequate. The ability to successfully treat ED with medication does not mean the condition no longer exists. Additionally, the January 2020 VA examiner opined that the Veteran’s ED was etiologically related to a psychiatric disability. Accordingly, the appeal as to entitlement to SMC for the loss of use of a creative organ is intertwined with the Veteran’s claim for service connection for any acquired psychiatric disorder. A new medical opinion is required on remand and any outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records relevant to his claim. 3. Then, request an opinion from an examiner other than the January 2020 VA examiner regarding the nature and etiology of any acquired psychiatric disorder, to include PTSD and depressive disorder. No additional examination is required unless the examiner deems it necessary. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner is requested to address the following: (a.) Diagnose all current psychiatric disorders present since August 2008, even if now resolved. Please specifically rule in or rule out diagnoses of marijuana dependence, alcohol dependence, adjustment disorder with depressed mood, PTSD, depression NOS, insomnia, and unspecified trauma/stressor related disorder. See January 2010, February 2010, November 2012, June 2018, September 2018, January 2019, June 2019 VA treatment records; October 2010 Social Security Administration psychiatric records; January 2011 private treatment records. If you determine that any diagnosis is not warranted based on your review of the claims file, you must thoroughly explain your conclusion in light of the diagnoses of the same in the Veteran’s VA treatment records, SSA records, and private treatment records. (b.) For each such diagnosed psychiatric disorder, please opine whether it is at least likely as not (50 percent or greater probability) that such disorder had its onset during service, to include as a result of the in-service injury to the Veteran’s groin. See January 2020 VA examination reports. In answering this question, please specifically address the following: 1. the July 2011 medical opinion from Dr. J.M. that the Veteran’s psychiatric symptoms are solely attributable to the February 2011 motorcycle accident; 2. the Veteran’s lay statement that his psychiatric symptoms began in-service after the conceded radio-controlled airplane accident; 3. the November 2012 VA diagnosis of PTSD rendered by a psychology intern; and 4. the October 2019 letter from VA psychologist Dr. S.S. A separate opinion for each diagnosed psychiatric disorder and a comprehensive rationale must be furnished for all opinions expressed. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any 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. (c) If any psychiatric disability is related to service, please also opine as to whether any diagnosed substance use disorders are: (1) proximately due to or (2) aggravated (worsened) by such disability. 4. Then, request an addendum opinion to determine the nature and etiology of his erectile dysfunction. The entire claims file, including a copy of this remand, should be made available to the examiner. All findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s ED: (a.) had its onset in or is otherwise related to service, to include as result of injury to his groin in service; (b.) is proximately due to a service-connected disability, to include the scars to his penis; or (c.) has been aggravated (worsened beyond natural progression) by a service-connected disability, to include the scars to his penis. Please note that the ameliorative effects of medication do not render the diagnosis of ED moot. In addressing questions (b) and (c), please note that there is no temporal requirement that the primary condition (service-connected disability) be service-connected, or even diagnosed, at the time the secondary condition (erectile dysfunction) is incurred, and reliance on this fact will render any opinion inadequate. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.