Citation Nr: 21025531 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-01 211 DATE: April 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and depressive disorder, to include as secondary to service-connected knee disabilities, and posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST), is remanded. Entitlement to an evaluation in excess of 10 percent for left knee strain is remanded. Entitlement to an evaluation in excess of 10 percent for right knee strain is remanded. Entitlement to a temporary total evaluation due to hospitalization for a mental condition, claimed in 2013, is remanded. Entitlement to a temporary total evaluation due to treatment for a service-connected condition requiring convalescence, in 2018, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1978 to July 1978 and from July 1979 to March 1981. The issue of entitlement to TDIU was previously before the Board in March 2020 when it was remanded for additional development. The Veteran’s initial claims for an acquired psychiatric disability, characterized as mental illness and depressive disorder were denied in rating decisions dated in August 2006 and November 2007, respectively. However, thereafter, in January 2014 service personnel records were associated with the claims file that identify the Veteran’s in-service discipline. As such, these records are relevant to the Veteran’s claim and the issue will be considered de novo on the merits. See 38 C.F.R. § 3.156 (c). In a January 2016 Substantive Appeal on a VA Form 9, the Veteran requested a Board hearing by live videoconference at a local VA office. Thereafter, in statements dated in May 2019 and October 2019, the Veteran’s representative waived the Veteran’s request for a hearing. Subsequent Substantive Appeals dated in November 2019 indicate that the Veteran did not want a Board hearing. In a May 2020 letter the Veteran’s representative was notified that a videoconference Board hearing was scheduled for June 2019 and, based upon correspondence from the representative, was withdrawn. Therefore, the Board will proceed with consideration of the appeals. Additional relevant evidence has been associated with the record since the Statement of the Case. As the issues are being remanded for additional development, the claims will be readjudicated by the Agency of Original Jurisdiction. See 38 C.F.R. §§ 19.31, 19.37. 1. Entitlement to service connection for an acquired psychiatric disorder. The Board cannot make a fully-informed decision on the issue of service connection for psychiatric disabilities because the medical opinions are not adequate. The claim must be remanded for an adequate medical opinion. An April 2014 VA examination included a negative nexus opinion and that examiner’s conclusion that it seemed less likely than not that the claims assault happened, but the rationale is inadequate. The examiner detailed the Veteran’s reported history of the inservice incident and the examiner’s characterization of his reporting of the assault as “rather sudden” and in connection with a claim for benefits but ultimately said there is “no clear evidence either for or against.” The opinion is equivocal and the “no clear evidence” contemplates a higher standard of proof than needed. A July 2014 VA examiner related the stressor to the Veteran’s service-connected knee disabilities, noted multiple psychiatric diagnoses and give a negative opinion as to the diagnosed depression was related to the knee disability. The basis of that opinion is inadequate because the examiner used the improper standard for aggravation. That opinion is further inadequate because the examiner said they would not provide an opinion on the reported military sexual trauma because it would require an additional appointment to explore the presence/absence of markers identified by VA as evidence of MST. The opinion is not adequate because it relied upon the improper standard with regard to secondary service connection and was not complete with regard to MST. An August 2019 opinion from a private provider diagnoses PTSD and associates the disability with the Veteran’s reported MST. That opinion is inadequate. The provider identifies that the Veteran was subject to a reduction in rank in service and he was eventually separated from reserves for poor performance. The provider identifies that the poor performance and behavior leading to reprimand are typical markers of a Veteran who suffered from MST. However, the provider did not comment on the significance of the Veteran’s subsequent grant of security clearance, subsequent assignment to a CBR Decontamination Team after identified assault, and the Veteran’s honorable discharge from active service due to completion of required service. Furthermore, the provider did not comment on the nature of the Veteran’s action leading to discipline in service, including the circumstances of the disobeying of a sergeant. 2. Entitlement to an evaluation in excess of 10 percent for left knee strain is remanded. 3. Entitlement to an evaluation in excess of 10 percent for right knee strain is remanded. The claim must be remanded for a new examination because the prior VA examinations, including the most recent in November 2016, do not include results of passive range of motion. See 38 C.F.R. § 3.159; Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). In addition, subsequent to the most recent examination, the Veteran received treatment for his knee disabilities, including kinesiotherapy, and complained of pain in both knees. See VA Treatment, December 2017; 38 C.F.R. § 3.159. 2. Entitlement to a temporary total evaluation due to hospitalization for a mental condition, claimed in 2013, is remanded. 3. Entitlement to a temporary total evaluation due to treatment for a service-connected condition requiring convalescence, in 2018, is remanded. 4. Entitlement to a TDIU is remanded. As a decision on the remanded issues could significantly impact decisions on entitlement to temporary totals and entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for temporary total and TDIU is required. On remand, VA treatment records regarding the Veteran dated since November 2020 must be obtained and associated with the claims file. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 2. After completion of the above, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate clinician to determine the likely etiology of any and all acquired psychiatric disorders. Copies of all pertinent records must be made available to the examiner for review. After reviewing the record, the examiner is asked to answer the following question: (a) Identify all diagnosed psychiatric disorders. (b) If PTSD is diagnosed, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran experienced a military sexual trauma stressor in-service? If so, is the PTSD related to the reported in-service trauma? The examiner must specifically address the following: (i) the Veteran’s report of being assaulted; (ii) the Veteran’s period of absence without leave in service; (iii) the Veteran’s discipline in service for insubordination; (iv) the Veteran’s grant of security clearance; and (v) the circumstances of the Veteran’s separation from Reserves. Are the events possible markers for sexual trauma? Why or why not? (c) For any other acquired psychiatric disorders diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to the Veteran's service, to include any conceded stressor. (d) Is at least as likely as not any acquired psychiatric disorder is proximately due to or aggravated by service-connected knee disabilities? Aggravation here is defined as any increase in disability. The examiner must consider, and discuss as necessary, the 2014 VA examinations and the August 2019 private evaluation. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. Thereafter, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected left and right knee strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 4. Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues entitlement to a temporary total evaluation due to hospitalization for a mental condition, claimed in 2013; entitlement to a temporary total evaluation due to treatment for a service-connected condition requiring convalescence, in 2018; and entitlement to a TDIU. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.