Citation Nr: 21027967 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 07-25 610 DATE: May 7, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for substance abuse, to include as a result of service-connected disability, is remanded. Entitlement to service connection for memory loss, to include as a result of service-connected disability, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for right fifth finger amputation with residual pain of the right arm and wrist is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to December 21, 2017, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1965 to March 1969. He served in the Republic of Vietnam from March 1968 to March 1969. The acquired psychiatric disorder/PTSD issue comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in August 2009, which granted a joint motion for remand (JMR) vacating a March 2009 Board decision and remanding the issue for additional development. The matters on appeal initially arose from rating decisions in July 2006, April 2007, November 2007, and December 2008 by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The 1151 issue on appeal was remanded for additional development by the Board in March 2009. The acquired psychiatric disorder, 1151, and TDIU issues were also remanded for additional development in July 2010. At that time, it was noted that the RO had conceded the Veteran's stressor as to having been exposed to rocket and mortar attacks during service in Vietnam. The issues currently remaining on appeal were remanded for additional development in June 2017. The Board also notes that the TDIU issue on appeal has been previously determined to be inextricably intertwined with the service connection and 1151 issues on appeal. Subsequent VA records show that a February 2018 rating decision established service connection for coronary artery disease and prostate cancer and assigned a 100 percent rating effective from December 21, 2017. As such, the TDIU issue for appellate review has been accordingly revised. In April 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. Although the issues on appeal were previously remanded, the Board finds that additional development is required for adequate determinations. As to the migraine headache claim, a November 2019 VA medical opinion found prior medical opinions were erroneous and stated that records showed the Veteran was diagnosed with tension headaches once during service in June 1966. An October 2019 VA medical opinion found headaches were more likely that not incurred in or caused by service based upon record of one episode of tension headache in June 1966. Service treatment records, however, include a diagnosis of tension headaches in June 1966 and show he complained of headaches during treatment in August 1968 and October 1968. The acquired psychiatric disorder/PTSD and associated substance abuse and memory loss issues were remanded by the Board in June 2017. The AOJ was instructed to obtain an examination to identify/diagnose any acquired psychiatric disorder that presently existed or had existed since November 2005. An April 2018 VA medical opinion found the Veteran failed to meet the "full DSM 5 diagnostic criteria for either a depressive disorder or an anxiety disorder or PTSD" and attributed his primary mental health diagnosis to "Cluster B Personality Disorder" symptomatology. However, subsequent VA treatment records provide a diagnosis of chronic PTSD apparently under the current "DSM-IV" diagnostic formulation. In March 2017, the Veteran was provided a copy of an independent medical expert opinion obtained in association with his 1151 claim. Although the physician provided opinions based upon review of a provided summary of the case, it was noted that the disc provided did not include the primary source records. Such suggests that the examiner did not have the complete record available to provide an opinion. Indeed, the examiner even not that her opinion was based solely on the summary provided by VA. Correction is necessary. The matter involves a complex medical issue such that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The Board also notes that the Veteran reported he last worked as a truck driver in 1998. His TDIU claim has been found to be inextricably intertwined with the service connection and 1151 issues on appeal. The Board further finds that upon completion of any appropriate action as to these matters that reconsideration of the TDIU claim must be addressed based upon all service-connected disabilities prior to December 21, 2017. In light of these matters, the Board finds that further development is required for adequate determinations. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has currently or for any identified period of time during the appeal a migraine headache disability that was at least as likely as not incurred in or aggravated by active service. It should be noted that service treatment records include a diagnosis of tension headaches in June 1966 and that records show he complained of headaches during treatment in August 1968 and October 1968. A complete rationale must be provided. 2. Schedule the Veteran for an examination by a VA psychiatrist or other appropriate medical specialist who as not previously examined him to determine the nature and etiology of any acquired psychiatric disorders. The examiner is asked to address the following: a. Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. The examiner should state whether a diagnosis of PTSD has been established. b. If a diagnosis of a diagnosis of PTSD is not made, the examiner should identify the missing criteria. The examiner must also reconcile her or his opinion with the positive diagnoses of PTSD of record. c. If the Veteran is diagnosed with PTSD, the examiner must opine whether it is at least as likely as not related to a verified in-service stressor. The in-service stressors should be clearly identified. d. If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. e. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. A complete rationale must be provided. 3. Obtain an advisory opinion from an independent medical expert based a review of the evidence of record as to: a) Whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault with regard to the Veteran's post 2006 surgical course that led to his right fifth finger amputation. b) Whether the degree of care was as expected of a reasonable healthcare provider following the repeat surgery performed on December 12, 2006. c) Whether the amputation was a reasonably foreseeable outcome of the Veteran's December 2006 surgery and was the amputation was an ordinary risk of repeat Dupuytren's surgery that would normally have been discussed as a potential risk pre-operatively. The examiner should provide a summary ot the pertinent evidence of record and reconcile any opinion provided with the opinion included in the March 24, 2017, Board correspondence. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to December 21, 2017. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.