Citation Nr: 21024513 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-28 484 DATE: April 23, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and panic disorder, is remanded. Entitlement to service connection for tension headaches, to include as secondary to an acquired psychiatric disorder, is remanded. REASONS FOR REMAND The Veteran served in the Army from June 1975 to June 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is on record. In February 2018, the Board remanded the matters for further development, to include VA examinations on the etiology of his acquired psychiatric condition(s) and his tension headaches, which occurred in September 2019. A third matter, service connection for bilateral hearing loss, was also addressed and subsequently granted in full in an October 2019 rating decision. In February 2020, the Board again remanded the matters for further development, to include additional VA examinations on the etiology of his claimed psychiatric condition(s) and tension headaches, finding the Veteran’s September 2019 VA examinations failed to substantially comply with the Board’s February 2018 remand orders. The Veteran was provided these examinations in March 2020. The Board finds the March 2020 examinations substantially comply with the Board’s February 2020 remand orders; however, a remand is again warranted as the Veteran was provided an otherwise inadequate examination addressing his psychiatric condition(s). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and panic disorder, is remanded. The Veteran seeks service connection for a psychiatric disorder he contends he developed because of his military service. The Board sincerely regrets further delay, but finds a remand is again warranted before deciding this claim. The Veteran was recently provided a VA examination on the etiology of his psychiatric condition(s) in March 2020, per the Board’s February 2020 remand order. The examiner found the Veteran did not meet criteria for a PTSD diagnosis and instead diagnosed the Veteran with panic disorder. The examiner found the Veteran’s panic disorder to be less likely than not related to his military service. However, the Board finds this examination inadequate. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Here, the examiner appears to have improperly conducted outside nonmedical research on their own accord, subverting the Board’s fact-finding responsibilities. For example, the Veteran reported that during his time at Fort Hood, in March 1977, six soldiers were killed when a military vehicle was swept away by flooding. It appears the examiner attempted to discredit this report by the Veteran, finding no news evidence of a March 1977 incident, then noting, “[i]nterestingly, there is a report documenting that nine soldiers on Fort Hood were killed in June 2016 when their vehicle was caught in an overturned by a swollen creek at Fort Hood.” Thus, it appears the examiner viewed the Veteran as less than credible by purportedly finding evidence that the March 1977 in-service event described by the Veteran actually occurred in 2016. However, the Veteran first reported this incident in 2013. Thus, contrary to the examiner’s implication, the 2016 incident is not evidence that the Veteran is fabricating the March 1977 incident. Indeed, it supports the Veteran’s reported March 1977 incident, as it appears Fort Hood is prone to flooding. As such, since the March 2020 examiner improperly attempted to discredit the Veteran, the Board finds the March 2020 examination report and resulting opinion inadequate. Moreover, the examiner did not adequately explain why the Veteran does not meet the criteria for PTSD. For example, for Criteria C, the examiner indicated the Veteran did not avoid or put effort into avoiding distressing memories or other stimuli associated with his traumatic events. However, the Veteran has stated that certain stimuli trigger panic attacks and that he avoids crowds. For Criteria F, the examiner indicated the duration of the Veteran’s mental health disturbance has been less than one month; however, later in the examination report the examiner noted the Veteran endorsed irritability since 1978, which supports a disturbance duration of more than one month. Lastly, the examiner indicated that the Veteran’s mental health disturbance does not cause clinically significant distress or impairment in social or occupational settings, yet characterized the Veteran’s panic disorder as resulting in occupational and social impairment with reduced reliability. The Board notes that it does not attempt to provide its own medical determination by questioning the examiner’s findings as to whether the Veteran exhibited the criteria necessary for a PTSD diagnosis; however, when it appears the examiner’s criteria findings are so contradicted by the record and the Veteran’s reports, further explanation is needed for the Board to be able to rely on such a finding. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). In sum, a remand is warranted to provide the Veteran an addendum opinion on the etiology of his acquired psychiatric condition(s). See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for tension headaches, to include as secondary to an acquired psychiatric disorder, is remanded. As a March 2020 examiner found the Veteran’s tension headaches to be at least as likely as not related to the Veteran’s currently diagnosed psychiatric condition, the Veteran’s tension headache claim is inextricably intertwined with the Veteran’s claim for an acquired psychiatric disorder. The appropriate remedy where a claim is inextricably intertwined with other claim(s) currently on appeal is to remand the claim pending adjudication of the inextricably intertwined issue(s). Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from a clinician different than the March 2020 clinician, if possible, regarding the etiology of the Veteran’s acquired psychiatric condition(s). The examiner is asked to identify all psychiatric diagnoses on record during the period on appeal. The period on appeal begins in October 2012. The examiner must review all pertinent records associated with the claims file, including medical records and lay statements, such as those made at the Veteran’s September 2017 Board hearing. A full examination is left to the examiner’s discretion. The examiner should identify any psychiatric disorder that has been present during the appeal period or within close proximity thereto. If the examiner disagrees with a prior diagnosis in the record, the examiner should explain why such a diagnosis is not warranted. For each identified diagnosed psychiatric condition(s), to include PTSD and panic disorder, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the condition(s) manifested in service or is/are otherwise causally or etiologically related to Veteran’s military service. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then opine whether it is at least as likely as not (50 percent probability or greater) that PTSD is related to any in-service stressor. The examiner is reminded that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis or support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation for why that is so. 2. Readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.