Citation Nr: 21029665 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-06 895 DATE: May 14, 2021 REMANDED Entitlement to service connection for headache syndrome is remanded. Entitlement to service connection for a depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1983 to April 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for headache syndrome is remanded. The Veteran and her representative affirm that the Veteran is entitled to service connection for her headaches because they originated during her active duty service and were aggravated by her service-connected disabilities. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The evidence of record shows that the Veteran was diagnosed with headache syndromes, pursuant to a December 2015 VA examination. Therefore, the first element for direct and secondary service connection has been established. The record shows that the Veteran complained of headaches during active duty service. Therefore, the second element for direct service connection has been established. During the March 2021 Board hearing, the Veteran explained her belief that her headache disability originated during, and has continued since, active duty service based on the symptoms she perceives and experiences. Additionally, the Veteran noted that her service-connected Bell's palsy, sinusitis, and cervical spine disability aggravate her headache disability. The December 2015 VA examiner provided a negative nexus opinion based on direct service connection. The rationale was based on the lack of a diagnosis of chronic headaches during active duty service. The Board notes that the rationale is insufficient to properly assess the nature and etiology of the Veteran's disability. Additionally, the VA examiner did not address whether the Veteran's service-connected disabilities impact her headache disability, as she has contended in her statements and testimony. As the Veteran's medical records indicate that the Veteran has a current disability, and her lay statements demonstrate a potential link between the disability and her active duty service and/or service-connected disability, the Board finds that an additional medical examination and etiological opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran additional VA examination so as to determine the nature and etiology of the claimed disability. 2. Entitlement to service connection for a depressive disorder is remanded. The Veteran and her representative affirm that the Veteran is entitled to service connection for a psychiatric disorder because she claims it originated during her active duty service. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The evidence of record shows that the Veteran was diagnosed with a depressive disorder, pursuant to a December 2015 VA examination. Therefore, the first element for service connection has been established. The record shows that the Veteran complained of extreme anxiety during active duty service. Therefore, giving the Veteran the benefit of the doubt, the second element for direct service connection has been established. During the March 2021 Board hearing, the Veteran noted that she severe stress due to her duties and was sexually assaulted during her active duty service. The December 2015 VA examiner provided a negative nexus opinion based on direct service connection to symptoms shown in service. The rationale was based on the lack of a diagnosis of a chronic mental health disorder and the four-year delay in seeking mental health treatment after the Veteran's active duty service. The examiner noted that the Veteran's current daily stressors are the more likely cause of the Veteran's psychiatric disability, noting her chronic pain. The Board notes that the rationale is insufficient to properly assess the nature and etiology of the Veteran's disability. Additionally, the VA examiner did not address whether the Veteran's service-connected disabilities, specifically the ones that cause chronic pain, impact her psychiatric disorder. As the Veteran's medical records indicate that the Veteran has a current psychiatric disability, and her lay statements and testimony demonstrate a potential link between the disability and her active duty service, the Board finds that further psychiatric examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of the claimed disability. Finally, the Board notes that the Veteran is seeking service connection for posttraumatic stress disorder (PTSD) based on personal assaults during service. In claims for PTSD based on personal assault, VA has a heightened duty to notify the Veteran. Gallegos v. Peake, 22 Vet. App. 329 (2008); 38 C.F.R. § 3.304 (f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304 (f)(5). Therefore, additional notice regarding this issue should be sent to the Veteran and allow her a reasonable amount of time to submit additional evidence that may corroborate her report of the in-service assaults. The matters are REMANDED for the following action: 1. Send notice to the Veteran that complies with the requirements of 38 C.F.R. §3.304(f)(5) regarding his claim for service connection based on personal assaults, informing the Veteran that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of his reported assaults. 2. The Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's headache syndrome disability. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran's lay statements, and medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's headache syndrome disability originated during, or is etiologically related to, active duty service. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's headache syndrome disability was caused or aggravated by the Veteran's service-connected disabilities, to include her Bell's Palsy, sinusitis, and cervical spine disorder. 3. The Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's psychiatric disorder, to include PTSD and a depressive disorder. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran's lay statements, and medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's psychiatric disorder, to include PTSD and a depressive disorder, originated during, or is etiologically related to, active duty service, specifically to include her reported in-service personal assaults. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's psychiatric disorder was caused or aggravated by the Veteran's service-connected disabilities. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. The examiners are advised that the Veteran is considered competent to be able to report injuries and symptoms, and that her reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiners should provide a reason for doing so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.