Citation Nr: 21025382 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 13-28 916 DATE: April 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to higher staged ratings for a left knee disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran’s acquired psychiatric disorder had its onset during or is otherwise etiologically related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1980 to February 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In March 2018, the Board denied claims of service connection for obstructive sleep apnea, a right knee disorder, hypertension, and migraine headaches, and remanded claims of service connection for an acquired psychiatric disorder, a right hip disorder, a claim for increased ratings for a left knee disorder, and a TDIU for further development. Regarding the four remanded claims, the Board finds that further remand is required as to three of the claims: increased ratings for a left knee disorder, service connection for a right hip disorder, and a TDIU. These matters will be further discussed in the remand section below. See 38 U.S.C. § 5103A; Stegall v. West, 11 Vet. App. 268, 271 (2011). Regarding the claim of service connection for an acquired psychiatric disorder, the matter was remanded to acquire outstanding private medical records from Dothan Psychiatric Services. The AOJ sent the Veteran a letter asking him to provide authorization for VA to obtain outstanding private medical records in April 2018. The Veteran did not provide additional authorizations or otherwise respond to the AOJ’s request. Nevertheless, the Veteran submitted additional mental health treatment records in January and March 2020. As the Veteran did not respond to the AOJ’s request for authorizations, and instead opted to submit his own copies of relevant psychiatric treatment records, the Board finds that the AOJ has substantially complied with the prior remand directives. 38 U.S.C. § 5103A(b). The Veteran appealed the decision on the claims denied in March 2018 to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand in which the parties agreed that the Board erred in its duty to assist regarding the four denied claims. Specifically, the parties found that the Board failed to ensure that a proper effort was made to acquire relevant medical records from Martin Army Hospital. The parties further agreed that the Board failed to consider new caselaw in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which found that pain causing functional loss may be considered a disability for VA purposes, and that the Board did not consider relevant service medical records showing elevated blood pressure readings. In January 2020, the Board remanded these matters to obtain outstanding records from Martin Army Hospital. The agency of original jurisdiction (AOJ) made two requests for the records, one in February 2020 and another in April 2020. The facility did not respond to the requests. The AOJ notified the Veteran that VA was unable to obtain the records from Martin Army Hospital in a letter dated May 2020. It determined that all efforts made to obtain the records were exhausted and that further attempts to obtain them would be futile. Accordingly, the Board finds that the AOJ has substantially complied with the remand directives. However, further development is necessary in order to ensure that VA satisfies the duty to assist regarding the claims at issue on appeal. See 38 U.S.C. § 5103A(d). The Board recognizes that the Veteran’s attorney has requested copies of the curriculum vitae of the individuals who performed the VA examinations in December 2016, December 2018, June 2019, and August 2020. He asserted that the Board did not provide copies of the examiners’ curricula vitae when completing a records request in October 2020. See Third Party Correspondence, February 2021. The Board notes that examiners’ curricula vitae are not routinely associated with claims files, and this is true in the case on appeal. Therefore, a request for records under the Freedom of Information Act or Privacy Act would not yield the requested documents because they are not already within the claims file. Accordingly, the Board must remand the claims to the AOJ so that an attempt may be made to locate the curricula vitae, and if such documents cannot be procured. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection for posttraumatic stress disorder (PTSD) requires (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). Where VA determines that the veteran did not engage in combat with the enemy, the Veteran’s lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. The requisite additional evidence may be obtained from sources other than the veteran's service medical records. See Patton v. West, 12 Vet. App. 272, 277 (1999). 1. Entitlement to service connection for an acquired psychiatric disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for an acquired psychiatric disorder. Therefore, the claim may not be granted. The record reflects a number of diagnosed acquired psychiatric disorders, including bipolar disorder, PTSD, cocaine dependence (in remission) and opiate abuse (in remission). See CAPRI, August 2013. Thus, the questions for the Board are (1) whether there exists credible evidence of an event, injury, or disease relevant to an acquired psychiatric disorder during military service, and (2) whether there is a causal nexus between a current psychiatric disorder and the relevant occurrence in service. 38 C.F.R. § 3.303. Initially, the Veteran has asserted that he served in combat as a medic during military operations in Grenada. In March 2018, the Board concluded that military personnel records did not show that the Veteran was assigned to Grenada, and found that the objective evidence contained in the personnel records outweighed the Veteran’s lay reports. Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010). Thus, the Board concluded that there was no competent diagnosis of PTSD based on a credible military stressor. At present, the Board does not see a reason to disturb this finding. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran has not specified any other theory as to why he believes his acquired psychiatric disorder is related to military service. Accordingly, the element of an in-service occurrence is not established, and service connection must be denied. Moreover, as to the nexus element, the Board is aware of private medical records that cast doubt on a link between the Veteran’s psychiatric disorder and military service. In September 1999, the Veteran was hospitalized for mental health symptoms at the John Archbold Memorial Hospital. He stated that his symptoms started about six months before the hospitalization, and reported that he was having grief issues related to the death of his mother in the previous year. The clinician noted that psychotherapeutic work in the hospital was focused on exploring the Veteran’s psychosocial stressors, which included grieving issues, dependency needs toward his mother, and his relationship with his wife and relatives. The Veteran was diagnosed with major depressive disorder, single episode, severe, and anxiety disorder, not otherwise specified. The Veteran sought further treatment at John Archbold in April 2000, October 2001, and July 2002. In July 2002, he was diagnosed with bipolar disorder and denied any significant stressors related to his mood. The Board observes that neither the Veteran nor his treating clinicians related his symptoms to military service during any of these encounters. In sum, given the absence of credible evidence of an in-service event, injury or disease relevant to an acquired psychiatric disorder and the lack of competent evidence of a nexus between a current disorder and military service, the Board finds that the most probative evidence does not reach the level of equipoise in this claim. Thus, service connection may not be granted. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). REASONS FOR REMAND 2. Entitlement to higher staged ratings for a left knee disorder 3. Entitlement to service connection for a right hip disorder The Board finds that the above claims must be remanded to obtain the December 2018, June 2019, and August 2020 VA examiner’s curriculum vitae, or, if it is impossible to do so, to schedule a new examination and have the clinician provide a copy of his or her curriculum vitae. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (holding that, consistent with VA’s duty to assist, once a request is made for information as to the competency of an examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of a medical examiner). The Veteran’s attorney has requested copies of the curriculum vitae of VA examiners in December 2016, December 2018, June 2019, and August 2020. However, such documents have not been associated with the claims file. As such, the Board finds that an effort must be made to obtain the curricula vitae of these clinicians and provide the Veteran and his attorney with a copy of the documents. Alternatively, if it is not feasible to locate the curricula vitae of the prior examiners, the Veteran should be afforded a new examination with a clinician who includes a copy of his or her curriculum vitae and all other relevant professional credentials. 4. Entitlement to service connection for obstructive sleep apnea The Board finds that the above claim must be remanded for a VA examination and medical opinion. The Veteran has a current diagnosis of sleep apnea. See CAPRI, March 2018. In October and November 1984, the Veteran complained of trouble sleeping following his knee surgery. Accordingly, the Board finds that a VA examination should be scheduled to consider the possibility of an etiological nexus between the Veteran’s reports of trouble sleeping following knee surgery and his current obstructive sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (holding that for the purposes of scheduling a VA examination, the requirement of an event during military service is considered a “low threshold”). 5. Entitlement to service connection for migraine headaches The above claim must be remanded for a VA examination discussing the nature and etiology of the Veteran’s headache disorder. 38 U.S.C. § 5103A(d). The Board notes that the Veteran listed a history of “frequent or severe headaches” in his separation report of medical history in December 1984. VA medical records show current reports of headaches. Accordingly, the Board finds that a VA examination and medical opinion should be procured discussing the nature and etiology of his current headache disorder. 6. Entitlement to service connection for hypertension The Board finds that the above claim must be remanded for a VA examination and medical opinion. The record reflects a current diagnosis of hypertension. Service medical records show that the Veteran had elevated blood pressure readings during military service. Therefore, the Board finds that a VA examination and medical opinion is necessary to consider the question of a nexus between the elevated blood pressure readings in service and current hypertension. See 38 U.S.C. § 5103A(d). 7. Entitlement to service connection for a right knee disorder This matter must be remanded for a VA examination and medical opinion. The Veteran has reported a painful right knee, and a VA examination report in December 2018 found limited range of motion in the right knee secondary to pain. See Saunders, 886 F.3d at 1368. The Veteran has also been service-connected for a number of disorders of the lower extremities. Accordingly, the Board finds that a VA examination is warranted in order to consider the potential of an etiological relationship between the Veteran’s right knee disorder and military service and/or a service-connected lower extremity disorder. 38 C.F.R. § 3.310. 8. Entitlement to a TDIU As a grant of benefits for any of the remanded claims may affect the Veteran’s eligibility for a TDIU, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following actions: 1. Please secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Obtain copies of the curricula vitae, and VA letters of engagement (if any) with examination instructions, of the VA examiners who performed the examinations in December 2016, December 2018, June 2019, and August 2020. Document all development with respect to this directive in the claims file. If these documents are unavailable or cannot be associated with the claims file, complete the tasks listed in directive 3 and 4. 3. Schedule a VA examination to determine the current severity of the Veteran’s left knee disorder. The examiner is asked to describe the disorder in detail and report all symptoms necessary for rating it under relevant criteria. The examiner should include a copy of his or her curriculum vitae and VA letter of engagement (if any) with the examination report. The examiner is asked to conduct range of motion testing for pain on active and passive range of motion and with or without weightbearing. The examiner is also asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss during such periods. If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not limitations of personal knowledge. 4. Schedule a VA examination to determine the nature and etiology of the Veteran’s right hip disorder. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that the Veteran’s right hip disorder had its onset during or is etiologically related to military service? (b) Is it at least as likely as not that any right hip disorder is proximately due to, a result of, or aggravated by a service-connected disorder, to include a left hip and left knee disorder? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: • VA examination reports in 2018, 2019, and 2020 The examiner should include a copy of his or her curriculum vitae and VA letter of engagement (if any) with the examination report. 5. Schedule the Veteran for a VA examination for his obstructive sleep apnea. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that the Veteran’s current obstructive sleep apnea had onset during or is etiologically related to military service, to include the reports of trouble sleeping after knee surgery in 1984? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical records, to specifically include: • Service treatment records showing reports of trouble sleeping after knee surgery in 1984 • Report of medical history in December 1984, in which the Veteran denied frequent trouble sleeping If the basis of a negative opinion is the absence of sleep apnea or related symptoms in service, the examiner must indicate: (1) whether sleep apnea and related symptoms would have been noted in the medical records at the time and (2) whether the Veteran would have sought treatment for the disorders during military service. The examiner should include a copy of his or her curriculum vitae and VA letter of engagement (if any) with the examination report. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that the Veteran’s hypertension had its onset during or is etiologically related to military service? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical records, to specifically include: • Service treatment records showing elevated blood pressure readings, to include in June 1980, November 1982, August 1983, June 1984, October 1984, and December 1984 The examiner should include a copy of his or her curriculum vitae and VA letter of engagement (if any) with the examination report. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his headache disorder. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that the Veteran’s headache disorder had its onset during or is etiologically related to military service? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical records, to specifically include: • Report of medical history in December 1984 in which the Veteran reported a history of “frequent or severe headache” • VA medical records showing treatment for chronic headaches The examiner should include a copy of his or her curriculum vitae and VA letter of engagement (if any) with the examination report. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disorder, to include pain causing functional loss. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that any right knee disorder, to include right knee pain resulting in functional impairment, had its onset during or is etiologically related to military service? (b) Is it at least as likely as not that any right knee disorder, to include pain resulting in functional impairment, is proximately due to, a result of, or aggravated by a service-connected disorder, to include left knee and left hip arthritis? (Continued on the next page)   The examiner is advised that the Veteran exhibited right knee pain with limited range of motion at an examination in December 2018. An opinion stating that the Veteran’s right knee is currently showing normal findings does not address the question of a nexus, and will require further development. The examiner should include a copy of his or her curriculum vitae and VA letter of engagement (if any) with the examination report. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.